MORTGAGES 


I  F  O 


A   PRACTICAL   ESSAY, 


JAMES    i>E    FKEMKKV. 


SAN     FKAXClSi 
.1.     .T.     l.KCOI  NT,     PUBLISHER. 


LIB  R  ARY 

OF  THE 

UNIVERSITY  OF  CALIFORNIA 


GIFT    OF" 


Received 
Accessions  No.  M-S  M-^Q. 


CT 


MORTGAGES 


IN 


CALIFORNIA. 


A  PRACTICAL  ESSAY, 


BY 


JAMES  DB  FREMERY. 


SAN    FRANCISCO: 
J.    J.    LECOUNT,     PUBLISHER. 

1860. 


Entered  according  to  Act  of  Congress,  in  the  year  1860 , 

BY  JAMES  DE  FREMERY, 

in  the  Clerk's  Office  of  the  United  States  District  Court  for  Northern  California . 


PRINTED  BY  B.  F.  8TERETT,  CLAY  STREET. 


PREFACE. 


A  residence  in  California  from  1849  to  the  present  time, 
experience  in  the  investment  here  of  capital,  and  the  loss  of 
time  necessarily  involved  in  obtaining  a  practical  knowledge 
of  the  laws  directly  and  indirectly  affecting  mortgages  in 
this  State,  in  the  absence  of  a  concise  publication  on  the  sub- 
ject, suggested  to  the  writer  the  utility  of  the  present  essay, 
which  is  chiefly  intended  as  a  means  of  information  for  such 
as  have,  or  may  have,  funds  invested  here  under  his  care. 

Actual  results  demonstrate  that  loaning  on  mortgage  in 
California,  as  in  many  other  countries,  is  a  very  desirable 
mode  of  placing  funds  at  interest,  provided  it  be  done  with 
that  care  and  prudence  which  should  everywhere  be  observed 
in  the  matter  of  mortgages, — which  does  not  forget  the  les- 
son :  in  dubio  abstine, — and  which  takes  into  due  consideration 
the  influence  which  various  changes  of  circumstances  may 
have. 

So  likewise  has  experience  shown  that  in  this  State,  right 
and  justice  for  the  mortgagee,  as  well  as  for  the  mortgagor, 
are  in  harmony,  and  that  the  taking  of  money  on  mortgage 
may  in  a  great  degree  promote  the  interests  of  the  mortgagor. 
It  is  true,  the  interest  on  mortgages,  though  not  high  in  com- 
parison with  the  rates  of  interest  paid  on  all  other  loans,  is 
much  higher  here  than  in  many  other  countries,  the  supply  of 
capital  not  being  equal  to  the  large  demand  for  it ;  but  mort- 
gagors on  the  other  hand  may  derive  in  proportion  greater 
benefits  from  its  use.  The  principal  cause  hereof  is  the 
peculiar  nature  of  circumstances  in  California,  which  offers 


iv  PREFACE. 

so  wide  a  field  for  industry,  and  for  the  development  of  its 
resources  generally,  and  where  the  words  of  the  Lord  :  "  re- 
plenish the  earth,"  are  finding  their  fulfilment  in  such  a 
striking  manner. 

The  experience  obtained  in  investing  money  in  California, 
in  the  discharge  of  his  duties  as  agent  of  several  capitalists, 
and  under  the  advice  habitually  sought,  for  a  course  of  years, 
of  counsel  of  extended  business  and  conceded  position  at  the 
San  Francisco  bar — to  whom  also  his  acknowledgments  are 
due  for  valuable  suggestions  on  reading  his  sketch, — has 
enabled  the  writer  to  compile  the  information  which  is  con- 
tained in  this  essay. 

It  is  submitted  as  a  synopsis  of  legal  principles,  governing 
actual  cases  which  may  be  encountered  by  capitalists  placing 
money  on  mortgage  in  this  State,  but  as  will  be  readily  per- 
ceived by  a  reference  to  its  contents,  it  formed  no  part  of 
the  author's  plan  to  furnish  a  systematic  treatise  upon  the 
theory  of  mortgage  securities. 

Of  such  works  there  are  several  of  undoubted  authority, 
as  for  instance,  Hilliard's  valuable  work  on  the  Law  of 
Mortgages,  but  they  are  necessarily  voluminous,  covering 
the  whole  subject  of  the  law  of  mortgages  and  its  analogies. 
Besides,  without  previous  professional  reading  and  attain- 
ments, they  are  difficult  of  application,  if  not  for  want  of 
time  to  investigate,  practically  inaccessible  to  the  mass  of 
business  men  ;  and  it  is  to  such,  and  to  all  others  who  feel  an 
interest  in  the  matter,  that  the  following  pages  are  now 
offered  by  one  of  their  class. 

JAMES  DE  FREMERY. 


SAN  FEAN Cisco,  February,  1860. 


LIST  OF  REPORTS  REFERRED  TO. 


Add.  &  Ell.  Adolphus  &  Ellis'  Reports,  Queen's  Bench. 

B.  &  Ad.  Barnewall  &  Adolphus'  Rep.  King's  Bench. 

Barb.  Barbour's  Rep.  Supreme  Court  of  New  York. 

Barb.  Ch.  Barbour's  Rep.  Court  of  Chancery  of  New  York. 

Blackf.  Blackford's  Rep.  Supreme  Court  of  Indiana. 

Cal.  Rep.  Reports  of  the  Supreme  Court  of  California. 

Chev.  Cheve's  Rep.  Court  of  Appeals,  South  Carolina. 

Cond.  R.  Peters'  Condensed  Rep.  United  States  Supreme  Court. 

Conn.  Reports  of  the  Supreme  Court  of  Connecticut. 

Cow.  Cowen's  Rep.  Supreme  Court  of  New  York. 

Cranch.  Cranch's  Rep.  U.  S.  Supreme  Court. 

Dall.  Dallas'  Rep.  U.  S.  Supreme  Court,  etc. 

Denio.  Denio's  Rep.  Supreme  Court  of  New  York. 

Dev.  Devereux's  (Law)  Rep.  Supreme  Court,  North  Carolina. 

Edw.  Adm.  Edward's  Admiralty  Reports,  (Eng.) 

Eng.  Law  and  Eq.  English  Rep.  in  Law  and  Equity,  House  of  Lords,  etc. 

Freem.  Ch.  Freeman's  Chancery  cases  (Eng.) 

Gallis.  Gallison's  Rep.  U.  S.  Circuit  Court,  1st  Circuit. 

Geo.  Reports  of  the  Supreme  Court  of  Georgia. 

Gilman.  Oilman's  Rep.  Supreme  Court,  Illinois. 

Halst.  Ch.  Halsted's  Rep.  Court  of  Chancery,  New  Jersey. 

Hare.  Hare's  Rep  High  Court  of  Chancery,  England. 

How.  S.  C.  Rep.    Howard's  Rep.  U.  S.  Supreme  Court. 

Illin.  Reports  of  the  Supreme  Court  or  Illinois. 

Johns.  Johnson's  Rep.  Supreme  Court,  New  York. 

John.  Ch.  Johnson's  Rep.  Court  of  Chancery,  New  York. 

Labatt.  Labatt's  Rep.  District  Courts,  California. 

Leigh.  Leigh's  Rep.  Court  of  Appeals,  Virginia. 

Mad.  Maddock's  Rep.  Vice  Chancellor  of  England's  Court. 

Maine.  Reports  of  the  Supreme  Court  of  Maine. 

Marshall,  J.  J.      J.  J.  Marshall's  Rep.  Court  of  Appeals,  Kentucky. 

Mason.  Mason's  Rep.  U.  S.  Circuit  Court,  1st  Circuit. 

McAllister.  McAllister's  Rep  U.  S.  Circuit  Court  for  California. 

McL.  McLean's  Rep.  U.  S.  Circuit  Court,  7th  Circuit. 


VI 


LIST  OF  REPORTS  REFERRED  TO. 


Met. 
Monroe. 
Monroe  B. 
Ohio. 
Paige. 

Paine  C.  C.  R. 
Parker. 

Peters'  C.  C.  R. 
Peters'  R. 
Pick. 
Sandf.  Ch. 
Sch.  &  Lef. 
Seld. 
Sm.  &  M. 

Sumn. 
Ves.  jun, 
Walk.  Ch. 
Wendell. 
Wheat. 

April  T.  1859. 
July  T.  1859. 
Oct.  T.  1859. 
Jany.  T.  1860.  J 

Wood's  Digest. 


Me'tcalf  s  Rep.  Supreme  Court  of  Massachusetts. 
Monroe's  Rep.  Court  of  Appeals  of  Kentucky. 
B.  Monroe's  Rep.  Court  of  Appeals,  Kentucky. 
Reports  of  the  Supreme  Court  of  Ohio. 
Paige's  Rep.  Court  of  Chancery,  State  of  New  York. 
Paine's  Rep.  U.  S.  Circuit  Court,  2d  Circuit. 
Parker's  Rep.  Court  of  Exchequer. 
Peters'  Rep.  U.  S.  Circuit  Court,  3d  Circuit. 
Peters'  Rep.  U.  S.  Supreme  Court. 
Pickering's  Rep.  Supreme  Court,  Massachusetts. 
Sandford's  Rep.  Court  of  Chancery,  New  York. 
Schoals  &  Lefroy's  Irish  Chancery  Reports. 
Selden's  Rep.  Court  of  Appeals,  New  York. 
Sniedes  &  Marshall's  Rep.  High  Court  of  Errors  and  Ap- 
peals, Mississippi. 

Sumner's  Rep.  U.  S.  Circuit  Court,  1st  Circuit. 
Vesey  jun's  Rep.  High  Court  of  Chancery,  Eng. 
Walker's  Rep.  Ch  Michigan. 
Wendell's  Rep.  Supreme  Court,  New  York. 
Wheaton's  Rep.  U.  S.  Supreme  Court. 

Decisions  rendered  at  the  respective  Terms  of  the  Supreme 
Court  of  California,  the  official  reports  of  which  have  not  yet 
been  printed. 

Digest  of  the  statutes  of  California,  compiled  in  pursuance 
of  an  act  of  the  Legislature  of  1857,  as  in  force  at  that 
time. 


CONTENTS. 


INTRODUCTORY  REMARKS, xv 

CHAPTER  I. 

AGENCY.— ALIENAGE.— EFFECT  OF  WAR. 

AGENCY. 

Page 
ty  1.  Powers  to  be  given  to  an  Agent, 1 

2.  Powers  of   Attorney  are   strictly  construed.     Are  to  be  acknow- 

ledged and  recorded.    Revocation,  1 

3.  Investment  in  the  name  of  a  person  residing  in  the  State,  .  2 

ALIENAGE. 

4.  The  common  law  of  England  is  the  rule  of  decision  in  the  courts,  2 

5.  It  enables  aliens  to  hold  personal  property, 3 

6.  Including  mortgages, — which  the  alien  may  foreclose,    ...  3 

7.  Constitutional  right  of  resident  aliens  to  the  possession,  etc.,  of 

property,  3 

8.  Statutory  right  of  aliens  to  hol-d  by  inheritance,  disposition  of 

unclaimed  estates,  .  4 

9.  The  rights  of  aliens  may  be  affected  by  treaties,        ....        5 

10.  Right  of  aliens  to  sue  in  U.  S.  courts.      Removal   to  such  courts, 

of  suits  brought  against  them  in  State  courts,        ...  6 

11.  Jurisdiction  of  the  U.S.  courts, 7 

12.  Cases  in  which  it  does  not  apply,              7 

13.  An  absentee  must  be  sued  in  a  State  court, 8 

14.  The  federal  courts  to  take  cognizance  of   the  law?  of  the  State. 

Not  so  obliged  in  equity  proceedings,          ....  8 

15.  Appeal  to  the  U.  S.  Supreme  Court,  9 

EFFECT    OF   WAR. 

16.  War  does  not  affect  the  rights  of  aliens  residing  in  t^e  State,          .          10 

17.  Enemy's  property  liable  to  confiscation,  during,  but  not  after  the 

war,  10 

18.  Whether  property  within  the  country  at  the    commencement  of 

hostilities  is  so  liable,  ....          11 

19.  The  rule  that  this  property  is  not  liable  to  confiscation  considered,        12 

20.  Such  property  could  only  be  confiscated  under  an  act  of  Congress, 

but  no  such  act  exists,  12 


X  CONTENTS. 

INTEREST. 

Page 
§  62.  Interest  allowed  at  ten  per  cent,  per  annum,  where  not  differently 

stipulated.    Any  rate  may    be  agreed  upon.     Judgment  to 
carry  the  same  rate.    Interest  may  be  compounded,      .        .          38 

MORTGAGE. 

63.  Nature  of  mortgage;  is  a  mere  lien    to  secure  money.     The 

mortgage  does  not  entitle  its  owner  to  possession,      ...      39 

64.  Form  the  same  as  of  convejance,  but  void    on  payment,  and 

authorizing  sale  or  foreclosure  on  default,  ...        39 

65.  Mortgage  deed  to  waive  homestead  right,  etc.,  and  to  stipulate 

the  payment  of  taxes  and  other  charges,  ....      40 

66.  Terms  for  which  mortgages  are  made.      Not  generally  continued 

beyond  four  years  after  maturity, 40 

67.  Question  whether  the  mortgage  can   be  enforced,   after  action 

on  the  note  is  barred.     Affirmative  decisions,  .  .40 

68.  Though  the  right  to  enforce  be  recognized,  no  personal  judgment 

can  be  obtained, 42 

HOMESTEAD. 

69.  Const:tutional  right  of  homestead 42 

70.  Not  to  exceed  five  thousand  dollars.      Exempted  from  forced 

sale  for  debt, 42 

71.  Liens  to  which  this  exemption  does  not  extend.    Mortgage  on 

homestead  when  valid, 43 

72.  Homestead  to  be  set  apart  for  surviving  wife  and  children,         .          43 

73.  Definition  of   homestead,  how  alienated,  and  how  the  premises 

may  be  divested  of  the  character  of  homestead,         .        .        .4*3 

74.  Which  description  of  property  can  become  the  homestead,         .          44 

SEPARATE    PROPERTY. 

75.  What  constitutes  separate  property  of  husband  and  wife  respect- 

ively.   What  constitutes  common  pi  operty.     Subject  to  mar- 
riage contract, 45 

76.  Inventory  of  the  wife's  separate  property.     How  to  be  made  out 

and  recorded.     Such  property   exempt  from  forced  sale  for 
debts  of  husband ;  may  be  alienated  in  a  certain  manner,        .          45 

77.  How  it  may  be  alienated  by  the  wife,  after  one  year's  absence 

of  her  husband, 46 

TAXES. 

78.  All  property,  except  churches,  etc.,  is  subject  to  taxation.  Certain 

provisions  of  the  revenue  laws  as  to  lien  of  tax,    .         .  46 

79.  Equalization  of  taxes.     Sale  for  delinquent  taxes,          ...      47 

80.  Redemption,  conveyance,  nature  of  title  conveyed  as  expressed 

in  the  law, 47 

81.  Mortgagee  authorized  to  pay  taxes.      Mortgagor  purchasing  at 

tax  sale,  does  not  impair  the  mortgage  lien,         ....      48 

I  N  SURANCE. 

82.  Insurance,  IIOM    made  for  the  protection  of  mortgagees,         .          48 


CONTENTS.  XI 

CHAPTER   IV. 

POSSESSION.— FIXTURES.— MECHANIC'S  LIEN.— WASTE. 

POSSESSION. 

<)  83.  Is  an  important  element  of  title.    When  notice.    Why  the  mort- 
gagor should  be  in  possession, 50 

FIXTURES. 

84.  A  mortgage  carries  with  it  all  fixtures.    They  cannot  be  removed 

by  the  mortgagor,  51 

85.  Including  the  crops  growing  at  the  time  of  sale,        ...      52 

MECHANIC'S    LIEN, 

86.  Definition.    The  ground  subject  to  the  lien,  without  impairing 

previous  incumbrances.  Lien  for  inproving  lots  and  adjoin- 
ing streets, 52 

87.  Notice  to  be  filed  within  sixty  days.    Action  to  be  brought  with- 

in a  certain  period.    Notification  of  trial.    Liens  under  the 

act  not  then  presented,  to  be  deemed  waived,    ....      53 

88.  Persons  dealing  with  the  property  during  progress  of  the  work, 

are  charged  with  notice.  Original  contract  not  to  be  altered 
so  as  to  injure  third  parties.  Mechanic's  lien  subsequent  to 
mortgage,  is  subordinate  to  it, 53 

WASTE. 

89.  The  law  will  protect  the  mortgagee  against  waste.    From  com- 

mencement of  action  the  statute  directly  interferes,  .  54 

90.  Injunction  against  waste  during  foreclosure,        ....          55 

91.  Recovery  by  the  purchaser  of  damages  for  injury,         .        .  55 

CHAPTER  Y. 

ASSIGNMENT.— RELEASE. 

ASSIGNMENT. 

92.  Mortgage  and  debt,  how  usually  assigned.    Endorsement"  of  note 

carries  the  mortgage, 56 

93.  The  debt  and  the  security  cannot  be  separated,          ...  56 

94.  Assignment  of  mortgage  made  to  a  married  woman,      ...  57 

95.  The  assignee  takes  subject  to  existing  equities.  Exception  to  this  rule,  57 

96.  Amount  due  on  assignment  to  be  ascertained.     Notice  to  be  given 

to  the  mortgagor.  Payments  before  notice  held  to  be  valid 
against  the  assignee, 58 

97.  Both  objects  attained  if  the  mortgagor  be  a  party  to  the  assignment,       58 

RELEASE, 

98.  Only  payment,  or  release,  will  discharge  the  mortgage ;  but  the 

debt  may  be  extinguished  as  a  personal  claim,          ...        59 

99.  Or  the  land  may  be  released  from  the  lien,  without  affecting  the 

liability  on  the  note.  Position  of  the  mortgagee  with  reference 

to  subsequent  incumbrances,  where  he  gives  a  partial  release,  59 

100.  Discharge  of  mortgage  by  entry  on  margin  of  record,        .        .  60 

101.  Or  by  certificate  of  discharge, 61 

102.  Such  certificate  to  be  recorded, 61 


Xii  CONTENTS, 

CHAPTER  VI. 

EQUITY    OF    REDEMPTION.  —  SETTLEMENT    ON    DEATH    OP 
MORTGAGOR.  —  FORECLOSURE.—  SALE.—  REDEMPTION. 

EQUITY    OF    REDEMPTION. 

Page 

§  103.  At  common  law  the  legal  estate  vests  in  the  mortgagee  and  be- 
comes absolute  on  default.  Equitable  right  of  redemption 
allowed  within  twenty  years.  How  barred,  the  mortgagee 
remaining  absolute  owner, 62 

104.  In  California   the  mortgagor  remains  owner.     His  equity  of  re- 

demption,   63 

105.  Who  entitled  to  redeem.    Whether  barred  by  the  decree  of  fore- 

closure, or  by  the  sale  under  it, 63 

106.  The  equity  of  redemption  is  the  real  estate  in  the  land  which  the 

mortgagor  may  convey, 63 

SETTLEMENT    ON    DEATH    OF    MORTGAGOR. 

107.  How  claims  against  the  estate  are  to  be  presented.    Sale,  when 

valid.    Its  proceeds  to  pay  the  mortgage.     Any  part  unpaid 
ranks  as  a  judgment, .63 

108.  Whether  District  Courts  have  jurisdiction  of  these  matters.     De- 

cisions on  this  point,        .        .        .        .  .        .        .        64 

109.  Property  levied  on  before  death,  may  be  sold.    Similar  cases,    .  65 

FORECLOSURE. 

110.  Action  on  default.    Whether  a  receiver  can  be  appointed,         .        66 

111.  Nature  of  foreclosure  suit.    Proceeds  of  sale  to  pay  the  mortgage. 

Execution  for  deficiency.     Suit  to  be  brought  in  the  proper 
county,  .      ' 66 

112.  Who  are  to  be  made  parties  to  the  suit, 67 

113.  Service  of  the  summons.    By  publication  in  certain  cases,        .  68 

114.  Debt  to  be  proved.    The  action  does  not  abate  by  the  death  of  a 

party,  or  by  transfer  of  any  interest,  ....  68 

115.  Manner  of  rendering  judgment.    Judgment  a  lien  on  the  debtors 

real  property, 69 

116.  Appeal.    How  to  stay  execution.    An  appeal  does  not  impair  the 

lien, 69 

SALE. 

117.  Sale.    Postponement  by  plaintiff,          .        .        .        .        .        .        70 

118.  Order  of  sale  in  certain  cases.    The  sale  ceises  when  a  sufficient 

amount  is  realized,  unless  the  property  cannot  be  sold  in 
portions, 71 

119.  Execution  for  deficiency, 71 

120.  The  purchaser  takes  subject  to  existing  incumbrances.      Remarks 

on  the  sale, 71 

121.  Statutory  right  of  redemption  applicable  to  mortgages,  seldom 

availed  of,         ...  73 


CONTENTS.  Xiii 

REDEMPTION . 

Page 

§  122.  Who  entitled  to  redeem  within  six  months  and  on  what  terms,  74 

123.  Redemption  from  a  redemptioner  within  sixty  days.    Conveyance, 

when  made.  74 

124.  To  whom  payment  may  be  made,  on  production  of  certain  docu- 

ments,          75 

125.  The  court  may  restrain  waste  during  time  allowed  for  redemption,  76 

126.  The  purchaser  or  redemptioner  entitled  to  the  rent  or  its  value,  76 

127.  And  to  a  conveyance  and  possession,  after  expiration  of  the  time 

for  redemption, 77 

128.  How  this  right  to  redeem  affects  certain  parties,         ...  77 

CHAPTER  VII. 

DEEDS    OF    TRUST. 

129.  Conveyance  in  trust  for  payment  of  debt, 78 

130.  The  trustee  to  sell  upon  default.    Conditions  relating  to  sale,  78 

131.  Such  deed  of  trust  not  subject  to  foreclosure  ;  nor  a  sale  under  it 

to  redemption.    Wherein  different  from  a  mortgage,        .        .        79 

142.  Advantages  derived  from  securing  money  in  this  manner,  .  80 

143.  The  deed  may  provide  for  new  trustees;  if  not,  the  court  will 

appoint  when  necessary,  80 

CHAPTER  VIII. 

LIMITATION. 

134.  The  periods  within  which  civil  actions  may  be  commenced,  is  lim- 

ited by  statute.     Will  have  the  effect  of  perfecting  titles   to 
real  property.    Action  to  be  commenced  within  the  periods 

described, 81 

134.*  Limitation  of  suits  by  the  State,  for  real  property,       ...        82 

135.  Action  for  recovery  of  real  property,  its  rents,  etc.    How  affected 

by  adverse  possession, 82 

1  35.*  Time  not  to  run  during  certain  disabilities, 83 

1 36.  Actions  other  than  for  the  recovery  of  real  property.    When  an 

action  shall  be  deemed  commenced, 83 

137.  Where  defendant  is  absent  from  the  State.    When  a  person  is  an 

alien  enemy, 84 

138.  Where  judgment  is  reversed.     Where  action  stayed  by  injunction, 

etc,  84 

139.  Disabilities  can  not  be  availed  of  unless  existing  when  cause  of 

action  accrues.    Evidence  of  a  new  or  continuing  contract  to 

be  in  writing, 84 


ERRATUM. 

Page  74,  in  note  c  after  the  words  :  "  If  the  mortgagee  or  creditor,"  the 
following  line  has  been  omitted  : 

for  a  debt  contracted  under  the  act,  previous  to  its  amendment  in  1859, 


For  other  errata  and  addenda,  see  afterpage  84. 


INTRODUCTORY    REMARKS. 


The  object  of  these  pages  is  to  exhibit  the  manner  in  which 
loans  may  be  secured  by  mortgage  on  real  property,  in  the 
State  of  California,  and  the  contingencies,  benefits  and  rem- 
edies to  which  such  investments  are  subject.  It  is  not  in- 
tended, however,  to  treat  at  large  the  particular  questions 
which  under  exceptional  circumstances  may  arise,  but  only 
to  state  generally  the  principal  points  connected  with  mort- 
gages ;  and  this  more  especially  with  reference  to  the  posi- 
tion of  the  mortgagee,  under  a  first  mortgage  on  real  estate, 
given  to  secure  money  borrowed,  and  the  remedial  measures 
in  case  of  non-payment  of  the  debt. 

Much  space  comparitively,  has  been  given  to  a  definition 
of  the  rights  of  aliens  as  mortgagees,  of  which  it  would  have 
been  difficult  to  give  a  clear  Tiew  within  narrower  limits. 

None  but  the  best  authorities,  of  acknowledged  influence 
in  the  settlement  of  judicial  principles,  have  been  quoted. 
Though  in  many  instances  only  one  or  two  decisions  have 
been  cited  ;  these  will  on  examination  prove  to  refer  to 
numerous  other  cases  sustaining  the  same  or  similar  views. 

The  laws  of  the  State  of  California,  and  the  decisions  of 


xvi  INTRODUCTORY  REMARKS. 

her  Supreme  Court,  have  been  examined  up  to  the  last  day 
of  January  of  the  present  year,  1860,  and  cited  where  neces- 
sary. 

No  allusion  has  been  made  to  the  laws  and  usages  govern- 
ing the  possession  and  transfer  of  mining  claims  and  water- 
ditches,  as,  for  various  reasons,  these  securities  do  not  come 
within  the  range  of  investments  made  by  the  writer. 


The  Constitution  of  the  State  of  California  provides,  art. 
I,  sec.  16,  that  no  ex  post  facto  law,  or  law  impairing  the  ob- 
ligation of  contracts,  shall  ever  be  passed.  This  provision 
will  not  be  changed,  much  less  repealed,  as  the  individual 
States  are  prohibited  from  passing  such  laws  by  the  Con- 
stitution of  the  United  States,  art.  I,  sec.  10. 


MORTGAGES  IN  CALIFORNIA. 

A   PRACTICAL    ESSAY. 


CHAPTER  I. 

AGENCY.— ALIENAGE.— EFFECT   OF   WAR. 


AGENCY. 


§  1.  If  not  present  in  the  State,  the  first  object  of  the 
capitalist  is  to  select  a  careful  and  reliable  agent,  who  must 
be  vested  with  authority  to  loan  the  money  entrusted  to  him, 
collect  both  principal  and  interest  when  due,  and  release  or 
foreclose  the  mortgage  as  circumstances  may  require.  The 
power  to  assign  the  debt  and  mortgage  is  also  frequently 
given,  as  it  may  sometimes  facilitate  the  realization  of  the 
debt,  whilst  it  can  be  done  without  recourse  on  the  original 
mortgagee,  by  adding  a  statement  to  that  effect  to  the  en- 
dorsement of  the  note. 

§  2.  All  letters  or  powers  of  attorney  receive  a  strict 
interpretation  ;  the  authority  never  being  extended  beyond 
that  which  is  given  in  terms,  or  is  absolutely  necessary  for 
carrying  the  authority  into  effect.a 

a  Pdley  on  Agency,  p.  192,  3d  ed.     Where  a  written  authority  has  been 

recorded,  or  is  otherwise  known  to  exist,  or  must,  by  the  very  nature  of  the 

transaction,  be  presupposed. — as,  for  instance,  in  cases  affecting  real  estate, 

where  one  person  signs  by  procuration  for  another, — it  is  the  duty  of  the 

1 


2  MORTGAGES  IN   CALIFORNIA. 

Under  sections  27  and  28  of  the  act  of  April  16, 1850, 
concerning  conveyances,*1  a  power  of  attorney  to  release  or 
assign  mortgages  must  be  acknowledged  and  recorded  like 
any. other  deed  whereby  real  estate  is  conveyed  or  affected. 
Such  power  of  attorney  is  not  deemed  to  be  revoked,  by  any 
act  of  the  party  by  whom  it  was  executed,  until  the  instru- 
ment containing  such  revocation  shall  be  deposited  for  record 
in  the  office  in  which  the  instrument  containing  the  power  is 
recorded. 

§  3.  The  foregoing  observations  refer  to  the  case  where  a 
person,  who  does  not  reside  in  this  State,  has  money  invested 
here  in  his  own  name.  But  a  large  portion  of  the  capital 
sent  here  by  non-residents,  for  investment  on  mortgage, 
stands  in  the  name  of  the  person  to  whose  care  it  is  en- 
trusted, who  receives  for  his  compensation  a  share  of  the 
interest  collected  by  him,  and  has  to  that  extent  an  interest 
in  the  investment. 

In  such  case,  the  latter  is  the  mortgagee,  and,  as  far  as  any 
person  here  is  concerned,  or  has  a  right  to  inquire,  the  sole 
owner  of  the  mortgage.  Acting  in  his  own  name,  he  needs 
no  power  of  attorney ;  and,  if  he  be  an  alien,  the  remarks 
which  follow,  upon  the  alienage  of  the  mortgagee,  and  the 
effect  of  war  upon  such  alienage,  are  not  applicable  to  him  : 
for  a  resident  alien  mortgagee  enjoys,  with  reference  to  prop- 
erty, the  same  rights  as  a  citizen,  as  will  be  seen  hereafter. 

It  is  usual,  when  holding  mortgages  or  other  property 
under  such  circumstances,  to  make  by  will  the  necessary  dis- 
positions to  protect,  in  case  of  death,  the  rights  of  interested 
parties. 

ALIENAGE. 

§  4.  As  the  intended  mortgagee  may  be  an  alien, — that  is, 
a  person  not  a  citizen, — it  will  be  useful  here  to  state  his 
rights  as  such. 

person  dealing  with  the  agent,  to  make  inquiries  as  to  the  nature  and  extent 
of  such  authority,  and  to  examine  it ;  and  if,  from  his  omission  to  call  for 
or  examine  the  instrument,  he  should  encounter  a  loss  from  the  defective 
authority  of  the  agent,  it  is  properly  attributable  to  his  own  fault.  See  Story 
on  Agency,  pp.  92-95,  4th  ed. 
•  Wood's  Digest,  art.  364,  365. 


ALIENAGE.  3 

By  an  act  of  the  legislature,  passed  April  13,  1850,a  the 
common  law  of  England  was  made  "  the  rule  of  decision  in 
all  the  courts  of  this  State,  so  far  as  it  is  not  repugnant  to 
or  inconsistent  with  the  constitution  of  the  United  States, 
or  the  constitution  or  laws  of  California." 

§  5.  The  common  law,  intent  upon  avoiding  injury  to 
commerce,  the  moving  power  alike  of  civilization  and  of  the 
wealth  of  nations,  enables  aliens  to  acquire,  hold,  and  trans- 
mit, either  to  a  citizen  or  to  another  alien,  movable  property 
in  like  manner  as  citizens  ;  and  they  can  also  bring  suits  for 
the  recovery  and  protection  of  that  property.b 

§  6.  By  movable  or  personal  property  is  understood  such 
objects  of  property  as  may  attend  a  man's  person  wherever 
he  goes,  and  are  such  as  may  be  carried  from  place  to  place. 
Money  demands  necessarily  come  within  this  description  of 
property  :  nor  is  their  character  in  any  manner  changed  by 
the  fact  of  their  being  secured  by  mortgage  on  real  estate. 
This  principle,  as  proceeding  from  the  common  law,  is  every- 
where recognized,  and  has  received  the  sanction  of  the 
Supreme  Court  of  the  United  States,  which  court  holds  that 
an  alien,  whether  resident  or  not,  "  can  take  a  mortgage  as 
security,  and  is  entitled  to  have  it  foreclosed  in  equity,  and 
the  land  sold  to  pay  the  debt,  as  the  demand  is  in  reality 
a  personal  one ;  the  debt  being  considered  as  the  principal, 
and  the  land  merely  as  an  incident ;  and  consequently  the 
alienage  of  the  mortgagee,  if  he  be  a  friend,  can,  upon  no 
principle  of  law  or  equity,  be  urged  against  him." c 

The  foreclosure  is  only  one  method  of  collecting  the  debt, 
being  the  appropriate  mode  of  subjecting  the  security  to  the 
payment  of  the  debt. 

§  7.  The  constitution  of  this  State  gives  to  bonajide  resi- 
dents the  same  rights  to  the  possession  of  property  as  enjoyed 
by  citizens,  in  the  following  words  (art.  I.  sec.  17) :  "  All 
aliens  or  foreigners,  who  are  or  who  may  hereafter  become 
bona  fide  residents  of  the  State  of  California,  may  enjoy  the 


•  Wood's  Digest,  art.  735. 

b  See  2  Kent's  Comment,  on  American  Law,  p.  62.    Bradwell  v.  Weeks, 
1  John.  Chan.  Rep.  p.  206. 
c  Hughes  v.  Edwards,  9  Wheat.  Rep.  p.  489 ;  5  Cond.  Rep.  p.  648. 


4  MORTGAGES  IN   CALIFORNIA. 

same  rights  in   respect   to   the   possession,   enjoyment,  and 
inheritance  of  property,  as  native-born  citizens." 

The  rights  of  resident  aliens  under  the  common  law  are 
thereby  fully  confirmed  as  regards  personal  property,  and 
considerably  extended  as  to  real  property. 

§  8.  With  reference  to  non-resident  alie.as,  whilst,  as  above 
shown,  they  have  under  the  common  law  the  same  rights  as 
citizens  for  acquiring,  holding,  and  transmitting  movable 
property,  the  right  to  acquire  such  property  by  inheritance 
has  been  in  part  confirmed  to  them  by  an  act  of  the  Legis- 
lature of  this  State,  passed  April  19,  1856,a  'which  also 
contains  a  liberal  extension  in  their  favor  of  the  common  law 
principles  concerning  inheritance  of  real  estate  ;  but  as  their 
rights  concerning  the  latter  do  not  affect  mortgages,  they 
form  no  part  of  the  matters  under  consideration.  The  act 
reads  as  follows  : 

"  Aliens  shall  hereafter  inherit,  and  hold  by  inheritance, 
real  and  personal  estate,  in  as  full  a  manner  as  though  they 
were  native-born  citizens  of  this  or  the  United  States ; 
provided,  that  no  non-resident  foreigner  or  foreigners  shall 
hold  or  enjoy  any  real  estate  situated  within  the  limits  of 
the  State  of  California  five  years  after  the  time  such  non- 
resident foreigner  or  foreigners  shall  inherit  the  same ;  but 
in  case  such  non-resident  foreigner  or  foreigners  do  not 
appear  or  claim  such  estate  within  the  period  in  this  section 
before  mentioned,  then  such  estate  shall  be  sold,  upon  inform- 
ation of  the  Attorney-General,  according  to  law,  and  the 
proceeds  deposited  in  the  treasury  of  said  State  for  the 
benefit  of  such  non-resident  foreigner  or  foreigners,  or  their 
legal  representatives,  to  be  paid  to  them  by  the  Treasurer 
of  said  State  at  any  time  within  five  years  thereafter,  when 
such  non-resident  foreigner  or  foreigners,  or  their  represent- 
atives, shall  produce  evidence,  to  the  satisfaction  of  the 
Treasurer  and  Controller  of  State,  that  such  foreigner  or 
foreigners  are  the  legal  heirs  to,  and  entitled  to  inherit,  such 
estate,  which  evidence,  together  with  the  joint  order  of  the 
said  Treasurer  and  Controller,  shall  be  placed  on  file  in  the 
office  of  the  Treasurer,  and  shall  be  to  him  a  voucher  for  any 

a  Wood's  Digest,  art.  2366.     See  The  State  of  California  v.  R.  C.  Rogers, 
Administrator,  April  T.,  1859. 


ALIENAGE.  5 

payments  made  by  him  under  the  provisions  of  this  act ; 
and  in  the  event  that  such  non-resident  foreigner  or  foreigners 
do  not  appear  or  claim  said  estate  or  proceeds,  and  produce 
said  evidence,  within  said  extended  term  of  five  years,  then 
said  estate  or  proceeds  shall  be  and  become  the  property  of 
the  State,  and  shall  be,  by  the  Treasurer  of  State,  placed  to 
the  credit  of  the  school  fund." 

As  above  stated,  the  right  to  acquire  personal  property  by 
inheritance  has,  by  this  act,  been  in  part  confirmed  to  aliens  ; 
for  the  law  enables  them  only  to  inherit  as  heirs  at  law,  but 
not  to  take  by  devise  or  bequest.  The  latter  mode  of 
inheriting  personal  property  is  included  amongst  their  rights 
under  the  common  law,  and  they  do  not  lose  it,  though  not 
provided  for  in  this  act. 

§  9.  Aliens  may  also  be  enabled  to  hold  or  to  inherit 
property,  by  the  stipulations  of  treaties  a  between  the  United 
States  and  the  respective  foreign  States,  particularly  with 
reference  to  a  confirmation,  or  modification,  of  the  alien's 
rights  at  common  law  to  the  acquisition,  possessicn,  and 
transmission  of  personal  property  ;  for  the  United  States 
government  does  not  wish — if,  indeed,  it  has  the  right — to 
interfere  with  the  legislation  of  the  various  States  concerning 
possession  and  inheritance  of  real  estate.b  None  of  the 
treaties  now  in  force,  however,  which  have  come  within  my 
observation,  contain  more  liberal  provisions  on  the  subject 
of  personal  property  than  are  already  secured  by  the  common 

a  By  art.  VI.  of  the  constitution  of  the  United  States,  treaties,  together 
with  the  constitution  itself,  and  the  laws  of  the  United  States  made  in  pur- 
suance thereof,  are  declared  to  be  the  supreme  law  of  the  land. 

Treaties  are  to  receive  an  extended  and  liberal  construction,  not  like  the 
contracts  of  individuals,  where  nothing  is  presumed  to  be  granted  but  what 
falls  plainly  within  the  words  of  the  grant.  University  v.  Miller,  3  Dev. 
p.  188. 

b  In  several  treaties,  still  in  force,  stipulations  have  been  made  in  regard  to 
real  estate,  but  the  right  of  the  general  government  to  do  so  has  been  seri- 
ously questioned ;  and  lately,  in  the  consular  convention  with  France,  signed 
at  Washington  Feb.  23,  185-^,  the  federal  government  limits  itself  to  confirm- 
ing the  rights  granted  by  the  laws  of  the  individual  States,  so  long  as  such 
laws  shall  remain  in  force,  and  a  promise  to  recommend  to  such  States  as  do 
not  now  give  foreigners  the  right  to  hold  real  estate,  the  passage  of  laws 
conferring  such  rights. 


6  MORTGAGES  IN   CALIFORNIA. 

law,  and  the  constitution  and  laws  of  this  State,  quoted 
above. a 

§  10.  On  the  principle  that  every  nation  is  responsible  for 
the  conduct  of  its  citizens  towards  other  nations,  and  that 
therefore  all  questions  touching  the  justice  due  to  foreign 
nations  or  people  ought  to  be  ascertained  by  and  depend  on 
national  authority ,b  an  alien  has,  by  the  constitution  of  the 
United  States,  the  right  to  sue  a  citizen  in  the  federal  or 
United  States  courts.  Yet  he  may  sue  and  be  sued  in  any 
of  the  State  courts,  provided  he  himself  fails  to  object  and 
ask  for  a  removal  to  a  federal  court.  It  is  his  right,  if  he 
choose  to  demand  it,  but  not  otherwise,6  to  be  heard  in  the 
federal  court,  and  an  alien  does  not  lose  this  right  by 
residing  in  the  United  States. d 

To  entitle  the  alien  to  have  a  suit,  commenced  against  him 
in  a  State  court,  removed  to  a  United  States  Circuit  Court, 

a  Stipulations,  confirming  the  rights  alluded  to,  are  found  in  treaties  made 
at  different  times  with  France,  Austria,  Prussia,  and  several  other  powers. 

For  instance,  with  the  addition  of  some  directions  concerning  the  recovery 
of  effects,  in  the  treaty  concluded  at  the  Hague,  October  8,  1782,  and  which 
remains  in  full  force,  between  this  country  and  the  States-General  of  the 
United  Netherlands,  art.  VI.  whereof  reads  as  follows : 

"  The  subjects  of  the  contracting  parties  may,  on  one  side  and  on  the  other, 
in  the  respective  countries  and  States,  dispose  of  their  effects  by  testament, 
donation,  or  otherwise ;  and  their  heirs,  subjects  of  one  of  the  parties,  and 
residing  in  the  country  of  the  other,  or  elsewhere,  shall  receive  such  succes- 
sions, even  ab  intestato,  whether  in  person  or  by  their  attorney  or  substitute, 
even  although  they  shall  not  have  obtained  letters  of  naturalization,  without 
having  the  effect  of  such  commission  contested  under  pretext  of  any  rights 
or  prerogatives  of  any  province,  city,  or  private  person;  and  if  the  heirs,  to 
whom  such  successions  may  have  fallen,  shall  be  minors,  the  tutors  or  cura- 
tors, established  by  the  Judge  domiciliary  of  the  said  minors,  may  govern, 
direct,  administer,  sell,  and  alienate  the  effects  fallen  to  the  said  minors  by 
inheritance,  and  in  general,  in  relation  to  the  said  successions  and  effects,  use 
all  the  rights  and  fulfil  all  the  functions  which  belong  by  the  disposition  of 
the  laws,  to  guardians,  tutors,  and  curators:  provided,  nevertheless,  that  this 
disposition  cannot  take  place  but  in  cases  where  the  testator  shall  not  have 
named  guardians,  tutors,  or  curators,  by  testament,  codicil,  or  other  legal 
instrument."  8  U.  S.  Statutes,  p.  36 

b  Chisholm  v.  The  State  of  Georgia,  2  Dall.  Rep.  pp.  419,  475,  2  Cond.  Rep. 
pp.  635,  671. 

c  Davis  v.  Packard,  6  Wendell,  p  333.  Easton  v.  Rucker,  1  J.  J.  Marshall's 
Rep.  p.  232. 

d  Breedlove  v.  Nicolet,  7  Peters'  Rep.  p.  413. 


ALIENAGE.  T 

upon  a  petition  filed  at  the  time  of  entering  his  appearance 
in  such  State  court,  the  matter  in  dispute  must  exceed  the 
sum  or  value  of  five  hundred  dollars.* 

§  11.  The  constitution  of  the  United  States  (art.  III.) 
vests  the  judicial  power  of  the  United  States  in  one  Supreme 
Court,  and  such  inferior  courts  as  the  Congress  may  from 
time  to  time  ordain  and  establish,  and  this  power  extends  to 
all  cases,  in  law  and  equity,  arising  under  the  constitution, 
the  laws  of  the  United  States,  and  treaties  made  under  their 
authority  ;  to  all  cases  affecting  ambassadors,  other  public 
ministers,  and  consuls  ;  to  all  cases  of  admiralty  and  mari- 
time jurisdiction  ;  to  controversies  between  a  State,  or  the 
citizens  thereof,  and  foreign  States,  citizens,  or  subjects  ;  etc.b 

§  12.  It  will  be  perceived  that  the  power  contained  in  the 
last  mentioned  clause  does  not  apply  to  controversies  between 
two  aliens.0  The  citizenship  of  one  party  to  the  suit,  and 
the  alienage  of  the  other,  must  be  set  forth  in  the  record,  in 
order  to  authorize  the  jurisdiction.*  Nor  does  the  jurisdiction 
vest  where  the  interest  is  joint,  and  two  or  more  persons  are 
concerned  in  that  interest  as  joint  plaintiffs,  or  joint  defend- 
ants, who  are  not  each  of  them  competent  to  sue,  or  liable  to 
be  sued,  in  the  federal  courts.6  These  exceptions  probably 
have  their  origin  in  the  desire  of  the  frarners  of  the  consti- 
tution to  detract  as  little  as  possible  from  the  sovereign 
jurisdiction  of  the  several  States,  and  the  fact  that,  where 
both  parties  to  a  suit  are  aliens,  there  is  no  danger  of  irrita- 
tion arising  from  apprehensions  of  partiality,  whilst,  where 

8  Judiciary  Act  of  1789,  <>  12. 

b  The  quotation  of  this  article  having  been  deemed  desirable,  it  is  proper 
to  state  that  it  was  modified  by  the  following  amendment  to  the  constitution, 
ratified  by  the  States  in  1793 :  "  The  judicial  power  of  the  United  States  shall 
not  be  construed  to  extend  to  any  suit,  in  law  or  equity,  commenced  or  prose- 
cuted against  one  of  the  United  States,  by  citizens  of  another  State,  or  by 
citizens  or  subjects  of  any  foreign  State." 

c  Mossman  v.  Higfiinson,  4  Dallas,  p.  12 ;  Course  v.  Stead,  4  Dallas,  p.  22 ; 
Montalet  v.  Murray,  4  Cranch,  p.  46,  2  Cond.  Rep.  p.  19. 

d  Jackson  v.  Twentyman,  2  Peters'  Sup.  C.  Rep.  p.  136 ;  Emory  v.  Gree- 
nough,  3  Dall.  Rep.  p.  369.  And  this  must  appear  by  affidavit  where  a 
defendant  seeks  to  remove  a  case  from  a  State  court  to  a  United  States  court. 
Welch  v.  Tennent,  4  Cal.  Rep.  p.  203.  See,  as  to  the  proceedings  on  removal, 
Brownell  v.  Gordon.  I  McAllister's  Rep.  p.  207. 

•  Strawbridge  v.  Curtiss,  1  Cranch,  p.  267. 


ftTHIVERSITT1 


8  MORTGAGES  IN  CALIFORNIA. 

a  citizen  and  an  alien  have  a  joint  interest,  a  serious  objec- 
tion exists  to  taking  the  case  out  of  the  State  courts.  The 
constitution  and  laws  of  the  United  States  have  been 
anxious  to  define  by  precise  boundaries,  and  preserve  with 
great  caution,  the  line  between  the  judicial  authority  of  the 
Union  and  that  of  the  individual  States. 

§  13.  It  has  also  been  decided  that  an  alien  cannot  sue,  in 
the  Circuit  Court  of  the  United  States,  a  citizen  who  is  at 
the  time  a  resident  of  a  foreign  country,  notwithstanding  he 
has  property  in  the  district  which  might  be  attached  ;  be- 
cause, under  the  act  of  Congress  passed  in  1789,  commonly 
called  the  Judiciary  Act,  which  gives  jurisdiction  to  the 
Circuit  Courts  when  an  alien  is  a  party,  no  compulsory 
process  lies  against  a  person  who  is  not  at  the  time  an 
inhabitant  of,  or  is  not  found  in,  the  district  in  which  the 
process  issues.  This  goes  to  exclude  from  the  Federal  Courts 
the  proceeding  by  foreign  attachment,  which  may  be  had 
under  the  local  laws  of  the  States.a 

§  14.  The  United  States  courts  are  bound  to  take  judicial 
cognizance  of  the  constitution  and  statutes  of  the  different 
States  ; b  in  all  actions  brought  in  said  courts,  the  Judiciary 
Act  of  1789  (34th  sec.)  provides  that  the  laws  of  the  State 
where  the  court  is  held,  except  where  the  constitution, 
treaties,  or  statutes  of  the  United  States  shall  otherwise 
require  or  provide,  shall  be  regarded  as  rules  of  decision  in 
trials  at  common  law,  in  the  cases  where  they  apply.  But 
in  equity  proceedings  the  United  States  courts  are  under 
no  such  obligation.0  In  cases  depending  on  the  laws  of  a 

a  Picquet  v.  Swan,  5  Mason's  Rep.  p.  35 ;  Toland  v.  Sprague,  12  Peters'1 
Rep.  p.  300. 

b  Gordon  v.  Hobart,  2  Sumner's  Rep.  p.  402. 

c  The  distinction  between  the  enforcement  of  legal  rights  and  the  pursuit 
of  equitable  remedies,  which  will  repeatedly  be  referred  -to  in  these  pages, 
may  be  thus  explained : 

The  common  law  of  England,  derived  from  remote  antiquity,  and  the  force 
and  authority  whereof  obtains  from  the  universal  consent  and  immemorial 
usage  of  the  people,  is  composed  of  general  and  unyielding  rules,  which  as 
society  and  civilization  advanced,  became  in  particular  instances  oppressive 
and  unjust,  according  to  the  enlarged  ideas  of  comparatively  modern  times. 

The  Chancellors  of  England,  being  in  early  times  churchmen  of  Rome, 
applied  the  humane  principles  of  the  civil  law  of  the  Roman  empire,  (as 
chiefly  laid  down  in  the  celebrated  Corpus  Juris  Civilis,)  in  which  they  were 


ALIENAGE.  9 

particular  State,  the  construction  put  upon  those  laws  by  the 
courts  of  the  State  will  be  adopted  as  far  as  practicable.* 

§  15.  From  all  final  judgments  rendered  in  the  Circuit 
Court,  in  any  cases  of  equity,  etc.,  where  the  matter  in 
dispute  exceeds  the  sum  or  value  of  two  thousand  dollars, 
an  appeal  is  allowed  to  the  Supreme  Court  of  the  United 
States.b 

To  the  same  court  an  appeal  lies,  under  the  twenty-fifth 
section  of  the  Judiciary  Act  of  1789,  from  any  final  judgment 
of  the  Supreme  Court  of  this  State,  in  cases  where  is  drawn 
in  question  the  validity  of  a  treaty  or  statute  of,  or  an 

schooled,  to  modify  and  ameliorate  the  harshness  and  asperities  of  the  com- 
mon law.  This  interference  occasioned  at  first,  and  for  a  long  time,  fierce 
conflicts  between  the  common  law  and  chancery  Judges ;  but  the  efforts  of 
the  Chancellors,  assisted  by  advancing  enlightenment,  were  successful,  and 
resulted  in  the  establishment  of  certain  principles  of  equity,  which,  adminis- 
tered concurrently  with  the  common  law,  have  for  centuries  formed  a  harmo- 
nious system  of  law,  without  conflict  of  jurisdiction  or  process  between  the 
two  courts. 

The  nature  of  equity  cannot  be  better  expressed  than  in  the  words  of 
Aristotle,  who  defines  it  to  be:  the  correction  of  the  law  wherein  it  is  defective 
by  reason  of  its  universality;  a  definition  adopted  by  Grotius  and  other 
eminent  authors. 

Courts  of  common  law  give  a  general  judgment  for  or  against  defendant ; 
but  they  have  no  method  of  proceeding  by  which  the  proper  remedy  can  be 
administered,  to  the  full  extent  of  the  relative  rights  of  the  parties,  in  cases 
where  a  simple  judgment  for  either  party  will  not  do  entire  justice  between 
them,  and  where  some  modification  of  their  rights,  or  some  peculiar  adjust- 
ment, either  present  or  future,  temporary  or  perpetual,  is  required.  In  all 
such  cases,  where  a  plain,  adequate,  and  complete  remedy  cannot  be  had 
in  common  law  courts,  equity  will  claim  jurisdiction  and  give  relief,  In 
some  instances,  courts  of  equity  are  distinct  from  those  of  law ;  in  others, 
the  same  tribunals  exercise  the  jurisdiction  of  both  courts,  though  their 
forms  of  proceedings  are  different  in  their  two  capacities. 

In  suits  founded  upon  mortgages,  justice  would  generally  not  be  fully 
administered  by  a  decision  only  founded  upon  common  law  principles,  and 
they  are  therefore  brought  in  courts  having  equity  jurisdiction.  Consider- 
ing the  vast  benefits  derived  from  the  application  of  equitable  principles 
in  the  judicial  settlement  of  such  suits,  it  may  well  be  said,  in  the  lan- 
guage ot  Chancellor  Kent,  that  "  the  case  of  mortgages  is  one  of  the  most 
splendid  instances,  in  the  history  of  our  jurisprudence,  of  the  triumph  of 
equitable  principles  over  technical  rules,  and  of  the  homage  which  those 
principles  have  received  by  their  adoption  in  the  Courts  of  law." 

*  Shelby  v.  Guy,  11  Wkeatoris  Rep.  p.  361,  6  Cond.  Rep.  p.  345;  Jackson 
v.  Chew,  12  Wheat.  Rep.  p.  153,  6  Cond.  Rep.  p.  489. 

b  Act  of  Congress,  March  3,  1803,  $  2. 


10  MORTGAGES  IN  CALIFORNIA. 

authority  exercised  under  any  State,  on  the  ground  of  their 
being  repugnant  to  the  constitution,  treaties,  or  laws  of  the 
United  States,  and  the  decision  is  in  favor  of  such  their 
validity ;  or  where  is  drawn  in  question  the  construction  of 
any  clause  of  the  constitution,  or  of  a  treaty,  or  statute  of, 
or  commission  held  under  the  United  States,  and  the  decision 
is  against  the  title,  right,  privilege,  or  exemption  specially 
set  up  or  claimed  by  either  party  under  such  clause,  or  com- 
mission.3' 

EFFECT    OF    WAR. 

§  16.  In  considering  the  restrictions  to  which  the  rights 
of  aliens  are  subject  during  war,  it  will  not  be  necessary  to 
refer  to  such  aliens  as  are,  on  the  breaking  out  of  war,  bona 
fide  residents  of  California,  the  same  rights  in  respect  to  the 
possession,  enjoyment,  and  inheritance  of  property,  as  are 
held  by  native-born  citizens,  being  guaranteed  to  them  by 
the  constitution  of  this  State.b 

The  following  observations,  therefore,  relate  exclusively  to 
the  position  of  a  non-resident  alien — or  alien  enemy,  as  he  is 
then  styled — during  the  existence  of  a  war  between  the 
United  States  and  his  country. 

§  IT.  The  property  of  an  enemy,  in  general,0  is  liable  to 
seizure  and  confiscation  as  prize  of  war,  but  only  during  the 
war.  For  the  sound  rule  of  international  law  is,  that  war 
suspends,  but  does  not  annul,  obligations  contracted  between 
individuals  of  different  countries  before  its  existence  ;  and, 
unless  there  is  some  legal  declaration  of  the  forfeiture,  the 
right  of  the  owner  revives,  and  he  may  enforce  it,  on  the 
return  of  peace.d  This,  Lord  Stowell  observes,  is  an  ac- 

*  This  section  of  the  Judiciary  Act  establishes  a  mode  of  final  adjudication 
of  the  questions  arising  under  it,  by  which  uniformity  of  interpretation 
throughout  the  United  States  is  insured.  Its  constitutionality,  which  has 
sometimes  been  questioned,  has  been  acknowledged  by  the  highest  tribunal 
of  this  State,  in  the  case  of  Ferris  v.  Coover,  11  Cal.  Rep.  p.  175. 

b  See  ante,  $  7. 

c  Immovable  property  is  never  confiscated,  but  its  rents  and  profits  may  be 
sequestrated.  By  nicer  shoecJc.  Quasi.  Jur.  Pull  lib.  i.  cap.  7 ;  Vattel,  Droit 
des  Gens,  liv.  iii.  ch.  5,  §  76 ;  3  Phillimore,  Comment,  upon  Intern.  Lawf 
p.  135. 

d  3  Phillimore,  Intern.  Law,  pp.  734,  735 ;  The  Adventure,  1  Wheat,  p.  128, 
note. 


EFFECT   OF   WAR.  11 

knowledged  principle  of  the  common  law  of  England,  which 
it  has  borrowed  from  the  stores  of  international  jurispru- 
dence.* 

§  18.  But  there  is  a  great  diversity  of  opinions,b  as  to 
whether  property  belonging  to  him,  including  debts  due  to 
him,  by  mortgage  or  otherwise,  and  found  within  the  terri- 
tory of  the  belligerent  State  at  the  commencement  of  hostili- 
ties, is  liable  to  the  same  fate  with  his  other  property  where- 
soever situated  ;  and  the  tendency  of  modern  usage  between 
nations  seems  to  be,  to  exempt  such  property  from  the  opera- 
tions of  war. 

The  late  Henry  Wheaton,  in  his  Elements  of  International 
Law, — after  stating c  that  Grotius,  whose  great  work  on  the 
laws  of  war  and  peace  appeared  in  1625,  considered  the  right 
to  demand  debts,  due  to  private  persons,  as  suspended  only 
during  war,  and  reviving  with  the  peace, — examines  the 
principles  laid  down  by  Bynkershoeck,  who  wrote  in  1737, 
Vattel,d  and  the  later  authors  on  the  law  of  nations,  and 
concludes  as  follows  :  "  It  appears,  then,  to  be  the  modern 
rule  of  international  usage,  that  property  of  the  enemy, 
found  within  the  territory  of  the  belligerent  State,  or  debts 
due  to  his  subjects  by  the  government  or  individuals,  at  the 
commencement  of  hostilities,  are  not  liable  to  be  seized  and 
confiscated  as  prize  of  war.  This  rule  is  frequently  enforced 
by  treaty  stipulations  ;  but,  unless  it  be  thus  enforced,  it 
cannot  be  considered  as  an  inflexible,  though  an  established 

•  Nuestra  Seilora  de  los  Dolores,  1  Edwards*  Adm.  Rep-  p.  60. 

b  Wheaton,  Intern.  Law,  part  IV.  ch.  1,  §  9. 

c  Ib id. ;  Clarke  v.  Morey,  10  John.  Rep.  p.  68. 

d  Vattel,  writing  about  the  year  1757,  says,  when  speaking  of  the  right  of 
seizure  and  confiscation,  that  "  the  sovereign  has  naturally  the  same  right 
over  what  his  subjects  may  be  indebted  to  the  enemy ;  therefore,  he  may 
confiscate  debts  of  this  nature,  if  the  term  of  payment  happen  in  time  of  war, 
or  at  least  he  may  prohibit  his  subjects  from  paying  while  the  war  continues. 
But,  at  present,  the  advantage  and  safety  of  commerce  have  induced  all  the 
sovereigns  of  Europe  to  relax  from  this  rigor.  And  as  this  custom  has  been 
generally  received,  he  who  should  act  contrary  to  it  would  violate  the  public 
faith  ;  for  strangers  trusted  his  subjects  only  from  a  firm  persuasion  that  the 
general  custom  would  be  observed.  The  State  does  not  so  much  as  touch  the 
sums  which  it  owes  to  the  enemy :  money  lent,  to  the  public  is  everywhere 
exempt  from  confiscation  and  seizure  in  case  of  war."  Vattel,  liv.  iii.  ch.  6, 
$77. 


12  MORTGAGES  IN  CALIFORNIA. 

rule.  '  The  rule/  as  it  has  been  beautifully  observed,  '  like 
other  precepts  of  morality,  of  humanity,  and  even  of  wisdom, 
is  addressed  to  the  judgment  of  the  sovereign,— it  is  a  guide 
which  he  follows  or  abandons  at  his  will  ;  and  although  it 
cannot  be  disregarded  by  him  without  obloquy,  yet  it  may  be 
disregarded.'  "a 

§  19.  In  the  decision  from  which  the  latter  quotation  is 
taken,b  the  United  States  Supreme  Court  further  held,  that 
"  it  was  not  an  immutable  rule  of  law,  but  depended  on 
political  considerations,  which  might  continually  vary.  Com- 
mercial nations,  in  the  situation  of  the  United  States,  had 
always  a  considerable  quantity  of  property  in  the  possession 
of  their  neighbors.  When  war  breaks  out,  the  question, 
what  shall  be  done  with  enemy's  property  in  our  country,  is 
a  question  rather  of  policy  than  of  law.  The  rule  which  we 
apply  to  the  property  of  our  enemy,  will  be  applied  by  him 
to  the  property  of  our  citizens."0  "  The  universal  practice 
of  forbearing  to  seize  and  confiscate  debts  and  credits,  the 
principle  universally  received  that  the  right  to  them  revives 
on  the  restoration  of  peace,  would  seem  to  prove  that  war 
is  not  an  absolute  confiscation  of  this  property,  but  that  it 
simply  confers  the  right  of  confiscation."  .  .  .  "  Between 
debts  contracted  under  the  faith  of  laws,  and  property 
acquired  on  the  faith  of  the  same  laws,  reason  draws  no 
distinction  ;  and  it  is  not  believed  that  modern  usage 
would  sanction  the  seizure  and  confiscation  of  the  goods  of 
an  enemy  on  land,  which  were  acquired  in  peace  in  the  course 
of  trade."  d 

§  20.  And  it  was  decided,  in  the  case  alluded  to,  that  such 
confiscation  was  not  a  necessary  consequence  of  a  declaration 

a  Wheaton,  Intern.  Law,  part  iv.  ch.  1,  §  9. 

b  Mr.  Chief  Justice  Marshall,  in  Brown  v.  The  United  States,  8  Cmnch's 
Rep.  p.  110;  3  Cond.  Rep.  p.  136. 

c  The  principle  of  reciprocity  operates  in  many  cases  of  international  law. 
The  conduct  of  the  enemy  may  be  a  consideration  for  retaliation,  as  the  fear 
of  reprisals  may  restrain  the  taking  of  extreme  measures. 

d  Kent  in  commenting  upon  this  decision  of  the  Supreme  Court,  says  that, 
as  it  is  asserted  by  its  authority,  this  right  is  contrary  to  universal  practice, 
and  it  may  therefore  well  be  considered  as  a  naked  and  impolitic  right,  con- 
demned by  the  enlightened  conscience  and  judgment  of  modern  times.  1 
Kent's  Comm.  p.  73,  8th  ed. 


EFFECT   OF   WAR.  13 

of  war,a  and  that,  in  this  country,  owing  to  the  distribution 
of  powers  under  the  constitution,  proceedings  to  condemn 
the  property  of  an  enemy,  found  within  our  territory  at  the 
declaration  of  war,  could  be  sustained  only  upon  the  prin- 
ciple that  they  were  instituted  in  execution  of  some  existing 
law.  Hence,  to  render  effective  the  belligerent  right  to  seize 
enemy's  property  found  in  the  United  States  at  the  com- 
mencement of  the  war,  an  express  act  of  Congress,  which  had 
never  been  passed,  was  requisite. 

Nor  has  any  such  law  been  passed  by  Congress  since  that 
decision  was  rendered. 

§  21.  Treaties  often  provide  against  the  confiscation  of 
property  of  the  enemy,  found  within  the  territory  of  the 
belligerent  State,  or  debts  due  to  his  subjects  by  the  govern- 
ment or  individuals,  at  the  commencement  of  hostilities,  by 
fixing  a  certain  period  within  which  such  property  may  be 
removed,  debts  recovered,  and  real  estate  realized.  Stipula- 
tions of  this  nature  are  contained  in  treaties  of  the  United 
States  with  the  Netherlands,1"  Sweden,  Venezuela,  Mexico, 
and  other  States. 

•  The  English  Court  of  King's  Bench  went  even  further.  When,  in  1807, 
the  Danish  government  issued  an  ordinance,  retaliating  the  seizure  of  Danish 
ships  and  other  property  by  Great  Britain,  by  sequestrating  all  debts  due 
from  Danish  to  British  subjects,  the  court  determined  that  such  sequestration 
was  not  conformable  to  the  usage  of  nations ;  the  text  writers  having  con- 
demned the  practice,  and  no  instance  having  occurred  of  the  exercise  of  the 
right,  except  the  ordinance  in  question,  for  upwards  of  a  century.  Wheaton, 
Intern  Law.  part  IV.  ch.  1,  $  12.  It  appears  that  no  similar  confiscation  has 
since  then  been  attempted. 

b  Art.  XVIII.  of  the  treaty  of  1782  with  the  Netherlands,  reads  as  follows : 
"For  the  better  promoting  of  commerce  on  both  sides,  it  is  agreed,  that 
if  a  war  should  break  out  between  their  High  Mightinesses  the  States- 
General  of  the  United  Netherlands  and  the  United  States  of  America,  there 
shall  always  be  granted,  to  the  subjects  on  each  side,  the  term  of  nine  months 
after  the  date  of  the  rupture,  or  the  proclamation  of  war,  to  the  end  that 
they  may  retire,  with  their  effects,  and  transport  them  where  they  please, 
which  it  shall  be  lawful  for  them  to  do,  as  well  as  to  sell  or  transport  their 
effects  and  goods,  in  all  freedom  and  without  any  hindrance,  and  without 
being  able  to  proceed,  during  the  said  term  of  nine  months,  to  any  arrest  of 
their  effects,  much  less  of  their  persons ;  on  the  contrary,  there  shall  be  given 
them,  for  their  vessels  and  their  effects,  which  they  would  carry  away,  pass- 
ports and  safe  conducts  for  the  nearest  ports  of  their  respective  countries, 
and  for  the  time  necessary  for  the  voyage.  .And  no  prize  made  at  sea  shall 
be  adjudged  lawful,  at  least,  if  the  declaration  of  war  was  not  or  could  not 


14  MORTGAGES  IN  CALIFORNIA. 

The  article  containing  a  similar  provision,  and  other  stipu- 
lations with  reference  to  a  state  of  war,  in  the  treaty  of 
Guadalupe  Hidalgo  with  the  latter  power,  closes  with  the 
declaration,  which  may  be  considered  as  embodying  the 
universally  adopted  principle,  as  to  the  efficacy  of  treaty 
stipulations  made  with  a  view  to  the  possibility  of  war,a  that 
"  no  pretence  that  war  dissolves  all  treaties,  nor  any  other 
whatever,  shall  be  considered  as  annulling  or  suspending 
the  solemn  covenant  contained  in  this  article.  On  the  con- 
trary, the  state  of  war  is  precisely  that  for  which  it  is  pro- 
vided, and  during  which  its  stipulations  are  to  be  as  sacredly 
observed  as  the  most  acknowledged  obligations  under  the 
laws  of  nature  or  nations." 

In  some  treaties,  the  contracting  powers  have  not  only 
granted  time  for  the  recovery  of  debts  in  case  of  war,  but 
have  also  agreed,  that  neither  the  debts  due  from  individuals 
of  the  one  nation  to  individuals  of  the  other,  nor  shares,  nor 
moneys,  which  they  may  have  in  the  public  funds,  or  in  the 
public  or  private  banks,  shall  ever,  in  any  event  of  war  or 
national  differences,  be  sequestrated  or  confiscated. 

This  has,  for  instance,  been  done  in  the  treaty  concluded 
in  1794,  between  the  United  States  and  Great  Britain,  (art. 

be  known,  in  the  last  port  which  the  vessel  taken  has  quitted ;  but,  for  what- 
ever may  have  been  taken  from  the  subjects  and  inhabitants  of  either  party, 
and  for  the  offences  which  may  have  been  given  them,  in  the  interval  of  said 
terms,  a  complete  satisfaction  shall  be  given  them."  8  U.  S.  Statutes,  p.  42. 

The  terms  hereby  granted  to  the  subjects  on  each  side,  to  sell  or  transport 
their  goods  in  all  freedom  and  without  hindrance,  will  enable  them  to  collect 
a  debt  secured  by  mortgage,  or  to  sell  the  mortgage,  as  circumstances  may 
require,  and  to  transport  the  proceeds. 

a  Wheaton  says,  speaking  of  such  stipulations  as  are  made  expressly  with 
a  view  to  a  rupture,  that  there  can  be  no  doubt  but  they  would  not  be  im- 
paired by  a  supervening  war,  being  the  very  contingency  meant  to  be  pro- 
vided for,  and  that  they  must  remain  in  full  force  until  rescinded  by  mutual 
agreement.  Wheat.  Intern.  Law,  part  iii.  ch.  2,  <j  10.  See  Vattel,  liv.  iii. 
ch.  10,  $  175 ;  1  Kent's  Comm.  p.  179,  8th  ed.  The  latter  says :  "  The  faith 
of  promises  and  treaties,  which  have  reference  to  a  state  of  war,  is  to  be  held 
as  sacred  in  war  as  in  peace,  and  among  enemies  as  among  friends."  "  There 
can  be  no  doubt  that  the  obligation  of  the  tenth  article  of  the  treaty  of  1794 
with  Great  Britain,  providing  that  debts  shall  not  be  confiscated,  was  not 
impaired  by  the  war  of  1812,  but  remained  throughout  that  war,  and  con- 
tinues to  this  day,  binding  upon  the  two  nations,  and  will  continue  so  until 
they  mutually  agree  to  rescind  the  article." 


EFFECT   OF   WAR.  15 

10,)  and  in  the  more  recent  treaties  of  this  country  with 
Ecuador,  with  Venezuela,  and  other  States.  The  treaty  with 
Great  Britain  contained  an  express  declaration  that  "  it  was 
unjust  and  impolitic  that  debts  and  engagements,  contracted 
and  made  by  individuals,  having  confidence  in  each  other 
and  in  their  respective  governments,  should  ever  be  destroyed 
or  impaired  by  national  authority  on  account  of  national 
differences  and  discontents."* 

§  22.  It  is  an  universal  rule,  that,  during  war,  an  alien 
enemy  cannot  make  valid  contracts  ;  he  could  not,  therefore, 
take  mortgages.  Every  species  of  contract,  made  without 
express  permission  of  the  government,  during  the  continuance 
of  the  war,  with  the  subjects  of  the  public  enemy,  is  utterly 
void.b 

§  23.  As  a  general  rule,  aliens  who  are  ~bonaf.de  residents 
may  sue  and  be  sued  during  a  war  between  their  country  and 
the  United  States  ;  and  in  this  State  they  have  the  undoubted 
right  so  to  do,  by  virtue  of  the  constitutional  provision 
before  alluded  to.  But  non-resident  aliens  cannot  in  such 
event  sustain  a  suit  in  the  courts  of  the  United  States,0  either 
federal  or  State,  neither  in  their  own  names  nor  in  the  name 
of  a  trustee  who  is  not  an  alien.d  Nor  can  a  neutral,  or  a 
citizen  of  the  United  States,  who  is  domiciled  in  the  enemy's 
country  ;  for,  not  only  in  respect  to  his  property,  but  also  as 
to  his  capacity  to  sue,  he  is  deemed  as  much  an  alien  enemy 
as  a  person  actually  born  under  the  allegiance,  and  residing 
under  the  dominion,  of  the  hostile  nation.6 

The  enemy  has  no  persona  standi  in  judicio  in  the  country 
of  the  adverse  belligerent/  unless  he  have  a  safe  conduct, 
which  pro  tanto  relieves  him  from  the  disability  incident  to 
his  character  ;  or  he  may  be  permitted  by  a  special  license 

*  8  U  S.  Statutes,  p.  122. 

b  1  Kenfs  Comm.  p.  76,  8th  ed.  Contracts  by  prisoners  of  war  for  neces- 
saries, and  for  ransom,  constitute  an  exception. 

c  Mnmford  v.  Mumford,  1  Gallis.  Rep.  p.  366 ;  Bell  v.  Chapman,  10  Johns. 
Rep.  p.  183. 

d  Crawford  et  al.  v.  The  William  Penn,  1  Peters'  C.  C.  Rep.  p.  106.  But  it 
is  no  valid  objection,  after  the  war,  that  the  suit  was  brought  by  plaintiff  as 
trustee  for  an  alien  enemy.  Hamersly  v.  Lambert,  2  John.  Ch.  Rep.  p.  508. 

e  The  Society,  etc.  v.  Wheeler  et  al.,  2  Gallis.  Rep.  p.  105. 

f  Bynkershoeck,  Quasi.  Jur.  Publ.  lib.  L  cap.  7. 


16  MORTGAGES  IN  CALIFORNIA. 

to  sue  or  be  sued.a  As,  for  instance,  by  virtue  of  treaty 
stipulations.  In  the  United  States,  where  the  plaintiff  came 
to  reside  before  the  war,  the  license  has  been  deemed  to  be 
implied  by  law  and  the  usage  of  nations  ;  and  if  he  came 
there  since  the  war  commenced,  a  license  has  likewise  been 
held  to  be  implied,  and  the  protection  to  continue  until  the 
executive  shall  think  proper  to  order  the  plaintiff  out  of  the 
United  States.b 

But  these  are  exceptions  ;  in  general,  his  civil  right  to  sue 
is  suspended  during  war. 

§  24.  The  defence  of  alien  enemy,  however, — that  is,  the 
denial  of  his  right  to  be  heard  as  plaintiff  in  courts  of 
justice, — is  by  no  means  favored  in  the  law,  and  some  modern 
cases  have  gone  a  great  way  in  discountenancing  it.c  One 
reason  is  given  by  Stephen,  who  mentions  the  plea  of  alien 
enemy  as  one  of  the  pleas  "  which  are  regarded  unfavorably 
by  the  courts,  as  having  the  effect  of  excluding  the  truth. "d 
Another  reason  will  be  the  unmistakable  tendency  of  modern 
and  more  enlightened  times,  to  soften  the  rigors  of  a  state 
of  war,  as  bearing  upon  commerce,  and  upon  unoffending 
inhabitants  of  the  belligerent  countries.6 


a  See  Johnson  v.  Goods,  2  Paine 's  C.  C.  Rep.  p.  639 ;  3  Phillimore,  Intern. 
Law,  p.  115. 

b  Clarke  v.  Morey,  10  John.  Rep.  p.  70. 

c  The  Society,  etc.  v.  Wheeler  et  al.,  2  Gallis.  Rep.  p.  105. 

d  Stephen  on  Pleading,  p.  353,  5th  ed. 

e  The  following  are  instances  where,  under  a  liberal  construction,  this  plea 
was  set  aside : 

A  plea  of  alien  enemy  should  be  rejected  on  motion,  if  the  nation  in  which 
the  plaintiff  is  alleged  to  be  resident  be  at  peace  with  ours.  Treaties  with 
foreign  nations  being  part  of  the  law  of  the  land,  of  which  the  courts  are 
bound  to  take  notice.  Baby  v.  Dubois,  1  Blackf.  p.  255. 

The  plea  of  alien  enemy  is  one  which  the  courts  discourage,  and  against 
which  they  will  make  every  intendment.  The  defendant  was  put  under  terms 
to  plead  issuably  by  an  order  of  the  23d  March.  On  the  28th,  war  was 
declared  against  Russia.  On  the  29th,  the  defendant  took  out  a  summons 
before  a  judge  for  leave  to  plead  a  plea  of  alien  enemy,  which  was  dismissed. 
On  application  to  the  court,  it  refused  a  rule  nisi  for  leave  to  plead  the  plea. 
(This  was  an  action  brought  in  the  Court  of  Common  Pleas,  the  plaintiff 
being  at  the  time  an  alien  friend,  upon  a  contract  for  the  sale  of  timber  at 
Riga.)  Shepeler  v.  Durant,  25  Eng.  Law  and  Eq.  Rep.  p.  334. 

In  the  case,  The  Society  for  the  Propagation  of  the  Gospel  (England)  v. 
Wheeler  et  al.,  2  Gallisoris  Rep.  p.  105,  the  learned  Justice  Story  ob- 


EFFECT   OF   WAR.  IT 

§  25.  The  disability  to  sue  is  but  temporary  in  its  nature, 
for  a  state  of  perpetual  war  is  not  to  be  presumed ;  and 
while  all  rights  of  non-resident  aliens  are  suspended  during 
war  with  their  respective  countries,  yet  those  existing  at  the 
commencement  of  the  war  are  not  extinguished,  but  revive 
in  their  full  force  on  the  return  of  peace.*  Debts,  for  in- 
stance, not  actually  confiscated,  are  judicially  considered  as 
revived,  together  with  the  right  to  sue  for  their  recovery,  on 
the  restoration  of  peace  between  the  two  countries.5  So 
may  an  alien  enemy  take  property  by  succession  as  next  of 
kin,  though  he  cannot  recover  it  during  war  ; c  it  remains  in 
the  hands  of  the  administrator  in  trust  for  him  until  the 
return  of  peace.  It  has  also  been  adjudged  that  a  bequest 
to  an  alien  enemy  was  good,  and,  after  a  peace,  might  be 
enforced.*1 

serves :  "  The  suit  was  commenced  in  a  time  of  peace,  and  every  presumption, 
which  can,  ought  to  be  made  to  support  it.  It  is  sufficient,  however,  that,  by 
possibility,  the  demandants,  in  their  corporate  capacity,  and  the  capacity  of 
their  members,  may  have  a.  persona  standi  injvdicio,  to  entitle  them  to  judg- 
ment. There  is  another  consideration,  also,  which  may  properly  weigh  in 
this  case.  The  suit  was  commenced  during  peace,  and,  on  the  declaration  of 
war,  it  was  competent  for  the  defendants  to  plead  the  hostile  alienage  of  the 
demandants,  if  it  existed,  in  bar  to  the  further  prosecution  of  the  suit.  They 
did  not  so  plead,  and  thereby  have  affirmed  the  ability  of  the  demandants  to 
prosecute  the  suit  to  judgment.  Upon  this  ground,  where  the  disability  of 
alien  enemy  occurred  before  judgment,  and  on  a  scire  facias  on  the  judgment 
the  disability  was  pleaded,  the  plea  has  been  held  bad  in  West  v.  Button, 
2  Lord  Raymond's  Rep.  p.  853." 

In  the  case  of  Buckley  v.  Lyttle,  where  the  plaintiff  became  an  enemy  after 
judgment,  the  court  refused  to  stay  or  set  aside  execution.  10  Johns.  Rep. 
p.  117. 

When  an  alien  obtains  judgment,  on  which  a  writ  of  error  is  brought,  and 
war  occurs  pending  such  writ,  judgment  will  nevertheless  be  affirmed.  Owens 
v.  Hanney,  9  Cranch,  p.  180. 

It  is  by  some  supposed  that,  where  a  covenant  had  been  entered  into  by  a 
mortgagor  in  time  of  peace,  not  to  plead  in  the  event  of  war  the  plea  of  alien 
enemy  in  bar  of  any  action  on  the  debt  or  mortgage,  such  plea  would  not  be 
allowed  in  our  courts. 

a  Bell  v.  Chapman,  10  Johns.  Rep.  p.  183. 

b  Wheaton,  Intern.  Law,  p.  379,  6th  ed. 

c  See  Bradwell  v.  Meeks,  1  Johns.  Chan.  Rep.  p.  206,  as  far  as  personal 
property  is  concerned.  In  California,  the  same  rule  will  apply  to  all  other 
property,  in  virtue  and  under  the  restrictions  of  the  act  of  19th  April,  1856, 
already  quoted,  §  8. 

d  Attorney-General  v.  Wheeden  et  al.,  Parker's  Rep.  p.  267. 

2 


18  MORTGAGES  IN  CALIFORNIA. 

§  26.  To  maintain  and  to  give  full  force  to  the  principle 
that  an  alien  enemy's  rights  are  only  suspended  during  a  war 
between  the  United  States  and  his  country,  and  revive  at  its 
expiration,  the  statute  of  limitations  of  this  State  (sec.  25) 
provides,  that,  "  in  cases  where  an  action  may  only  be  brought 
within  a  limited  term  after  the  cause  of  action  shall  have 
accrued,  and  a  person  shall  be  an  alien  subject,  or  citizen,  of 
a  country  at  war  with  the  United  States,  the  time  of  the 
continuance  of  the  war  shall  not  be  part  of  the  period 
limited  for  the  commencement  of  the  action." 


CHAPTER  II. 


TITLE.  — RECORD.  — SEARCH   OF   TITLE.  — ACKNOWLEDGMENT 
OR  PROOF. 


TITLE. 

§  27.  It  is  a  fundamental  principle  in  English,  as  well  as 
in  Spanish  law,  derived  from  the  maxims  of  the  feudal 
tenures,  that  the  king  was  the  original  proprietor  of  all 
land  in  the  kingdom,  as  well  as  of  all  territories  acquired, 
like  California,  by  discovery  and  colonization,  and  that  he 
was  the  only  and  true  source  of  title.*  In  the  United  States 
of  America  the  same  principle  has  been  adopted,  and  all 
valid  individual  title  to  land  in  California  is  therefore 
derived  from  the  government  of  the  United  States b  and  the 
State  of  California,  (from  the  latter  only  for  land  covered  by 
tide-water,)  or  from  the  Spanish  Crown,  prior  to  the  28th 
day  of  September,  1821,  the  day  recognized  in  law  as  the 
date  of  the  independence  of  the  Mexican  nation  ;  and  from 
the  government  of  Mexico  up  to  the  7th  July,  1846,  when 
the  United  States  took  possession  of  this  State,  which  was 
subsequently  ceded  to  them  by  the  treaty  of  Guadalupe 
Hidalgo,  Feb.  2d,  1848. 

§  28.  Many  large  grants  of  land  were  obtained  from  the 
Spanish  and  Mexican  governments  ;  and  inasmuch  as  Cali- 
fornia was,  up  to  the  time  of  its  cession  to  the  United  States, 
merely  a  vast  herding-ground,  with  hides,  horns,  and  tallow 
for  its  main  exports,  and  pasturage  the  only  purpose  for 
which  land  was  required,  the  boundaries  in  some  grants  are 
found  to  be  described  in  a  very  indefinite  manner  ;  in  others, 
the  quantity  said  to  be  contained  within  certain  boundaries 

*  See  Kent's  Comm.  p.  377. 

b  By  the  act  for  the  admission  of  the  State  of  California  into  the  Union, 
the  title  of  the  United  States  to,  and  the  right  of  the  federal  government  to 
dispose  of,  the  public  land  within  its  limits,  have  been  expressly  reserved. 


20  MORTGAGES  IN  CALIFORNIA. 

is  incorrect,  or  conditions  therein  made  were  not  complied 
with,  etc. 

Some  grants  were  made  to  cities  or  towns,  and  the  power 
to  grant  lands  deputized  to  its  authorities.  So  was  the 
Ayuntamiento,  or  Town  Council,  of  the  pueblo  or  town  of 
San  Francisco,  by  a  territorial  act  of  22d  November,  1835, 
authorized  to  grant  land  within  its  limits,  but  not  exceeding 
100  varas  (275  feet)  square  in  any  one  lot,  and  the  lots  not 
to  be  located  within  two  hundred  varas  of  the  beach.  The 
Alcalde  was  vested  with  the  chief  authority,  and  made  such 
grants  as  the  executive  officer  of  the  Ayuntamiento.  And 
by  instructions  from  the  territorial  government,  of  April 
23d,  1841,  Justices  of  the  Peace  in  San  Francisco  were 
authorized  to  grant  lots  of  50  varas  (137J  feet)  square,  but 
no  more. 

The  better  opinion  now  is,  that  the  towns  did  not  own  the 
lands,  but  only  acted  as  donees  of  a  power  to  grant,  and,  as 
such,  conveyed  an  absolute  title  in  fee  simple.  The  holders, 
however,  of  titles  obtained  by  purchase  under  execution 
against  the  city,  under  early  judgments  in  favor  of  Peter 
Smith,  and  others,  assume  the  ownership  to  have  been  in  the 
pueblos,  and  mainly  upon  this  question,  which  has  not  yet 
been  finally  decided,  rests  their  title  to  considerable  property 
in  the  city  of  San  Francisco. 

§  29.  In  order  to  determine  and  define  all  rights  claimed 
by  virtue  of  any  right  or  title  derived  from  the  Spanish  or 
Mexican  governments,  Congress  passed,  March  3d,  1851,a  an 
act  to  ascertain  and  settle  the  private  land  claims  in  the 
State  of  California.  This  was  the  more  necessary,  as  the 
sudden  and  large  immigration,  consequent  upon  the  gold 
discoveries  in  1848,  and  the  enormous  rise  in  the  value  of 
land  which  naturally  followed,  made  it  probable,  and  it  was 
by  subsequent  experience  demonstrated,  that  dishonest  per- 
sons would  claim  property  by  means  of  fraudulent  docu- 
ments.1' By  this  act  a  Land  Commission  was  instituted,  before 

a  Wood's  Digest,  appendix,  p.  751. 

b  Several  claims  based  on  such  documents  have  been  presented,  some  of 
which  have  been  rejected  for  this  reason,  whilst  the  vigorous  opposition  to 
them  has  led  to  the  abandonment  of  others  by  the  claimants  thereto.  One 
or  two,  which  are  supposed  to  be  of  that  nature,  are  still  on  appeal  before 


TITLE.  21 

which  every  claimant,  (including  cities,  towns,  etc.,  for  lands 
originally  granted  to  them,)  under  Spanish  or  Mexican  titles, 
was  enabled  to  present  the  same.  Upon  the  evidence,  docu- 
mentary and  otherwise,  produced  by  the  claimant,  or  on 
behalf  of  the  United  States  by  their  own  duly  appointed 
agents,  the  commissioners  decided  upon  the  validity  of  the 
claim,  as  against  the  United  States.  From  their  decision 
appeal  could  be  taken  to  the  United  States  courts. 

All  lands  to  which  no  claim  was  made  within  two  years  af- 
ter the  date  of  the  act,  or  to  which  the  claims  were  presented, 
but  finally  rejected,  are  deemed  public  domain.  That  is,  under 
this  act ;  for,  on  general  principles  of  law,  and  under  the 
treaty  of  Guadalupe  Hidalgo,  a  title  perfect  in  itself  under 
the  Mexican  government,  about  which,  or  its  conditions  or 
boundaries,  the  holder  has  nothing  to  ask  of,  arid  no  equity 
to  press  upon,  the  United  States  government,  must  be  re- 
spected, independent  of  any  action  under  the  act  referred  to. 

All  valid  grants,  however,  without  any  exception,  are  be- 
lieved to  have  been  submitted  to  the  Board  of  Land  Com- 
missioners, every  owner  having  been  desirous  of  obtaining 
its  confirmation  by  the  Board,  for  the  better  settlement  of 
the  title. 

§  30.  The  Land  Commissioners  closed  their  labors  in 
March,  1856,  and  the  time  limited  for  appeals  from  their 
decisions  has  since  expired  ;  but  some  of  the  cases  in  which 
their  decisions  were  appealed  from  are  still  before  the  United 
States  courts. 

For  all  claims  finally  confirmed  a  patent  issues  to  the 
claimant,  which  is  conclusive  between  the  United  States  and 
the  claimant,  and  between  persons  holding  under  either  of 
those  parties.  The  patent  takes  effect  by  relation  at  the 
date  of  the  presentation  of  the  claimant's  petition  to  the 
Land  Commissioners,  and  it  may  be  resisted  by  third  persons 
only  on  showing  that  it  conflicts  with  prior  and  superior 
rights  vested  in  them.a  Such  resistance  will  hardly  ever 

the  Supreme  Court  of  the  United  States.     The  principal  claim  based  upon 
fraudulent  documents  was  that  of  Jose  Y.  Limantour,  who  on  that  account 
now  lies  under  an  indictment  for  forgery ;  the  opinion  of  the  court  rejecting 
the  same,  as  rendered  by  Judge  Hoffman,  is  elaborate  and  very  interesting. 
a  Moore  v.  Wilkinson.  April  T.  1859. 


22  MORTGAGES  IN  CALIFORNIA. 

occur  ;  for  where  there  was  more  than  one  claimant  to  a 
grant  before  the  Board  or  on  appeal,  every  one  has  been 
allowed  to  plead  his  rights,  and  has,  as  far  as  known,  been 
anxious  to  avail  himself  of  the  opportunity  ;  and  as  the 
right  of  each  party  laying  claim  to  property  has  been  sub- 
jected to  a  close  scrutiny,  the  patent  may,  in  general,  be  con- 
sidered to  have  forever  settled  the  title  to  the  property  it 
affects. 

§  31.  In  the  mean  time,  Congress  provided,  by  act  of  3d 
March,  1853,a  for  the  survey  of  the  public  and  of  other  lands 
in  California,b  and  directed  that  the  public  lands  should  be 
subject  to  the  pre-emption  laws  passed  by  Congress  Sept.  4, 
1841  ,c  and  should  be  offered  for  sale  under  certain  regula- 
tions, with  the  exception  of  the  sixteenth  and  thirty-sixth 
sections  of  each  township,  (or,  in  certain  cases,  other  public 
lands  to  be  selected  by  the  State  instead,)  which  were  granted 
to  the  State  for  public  schools.  Congress  granted,  by  the 
same  act,  to  the  State  of  California,  two  entire  townships  for 
the  use  of  a  seminary  of  learning,  and  ten  sections  for  the 
erection  of  public  buildings. 

§  32.  The  act  of  Sept.  4,  1841,d  above  mentioned,  granting 
pre-emption  rights,  states  the  manner  in  which  the  head  of  a 
family,  a  widow,  or  a  single  man  over  twenty-one  years, 
being  a  citizen  of  the  United  States,  or  having  declared  his 
intention  to  become  such,  may  purchase  land,  not  to  exceed 
a  quarter  section,  at  the  minimum  government  price,  after 
having  made  a  settlement  upon  it.  Such  land  is  to  be 
entered  with  the  Register  of  the  land  office  for  the  district 
in  which  it  lies. 


a  Wood's  Digest,  appendix,  p.  748.  See,  for  an  extension  of  the  pre- 
emption privilege  in  California,  act  of  March  3,  1854,  Ibid.  p.  751. 

b  By  the  surveys  of  the  federal  government,  the  country  is  divided  by 
meridians,  six  miles  distant  from  each  other,  and  crossed  by  east  and  west 
lines  also  at  intervals  of  six  miles,  into  townships  of  six  miles  square,  and 
each  of  these  again  in  thirty-six  sections,  containing  each  one  square  mile, 
or  640  acres.  An  acre  contains  160  square  rods  or  perches,  or  4,840  square 
yards.  For  the  survey,  a  chain  is  used,  four  rods  or  sixty-six  feet  in  length, 
and  consisting  of  one  hundred  links. 

c   Wood's  Digest,  appendix,  pp.  744,  746. 

d  Wood's  Digest,  appendix,  p.  746.  See  also  acts  of  Congress  of  March  3, 
1853,  Ibid.  p.  750;  March  3,  1854,  Ibid.  p.  751;  August  4,  1854,  Ibid.  p.  747. 


TITLE.  23 

By  the  same  act,  five  hundred  thousand  acres  were  granted 
to  each  State  then  existing,  or  thereafter  to  be  admitted,  for 
purposes  of  internal  improvements  ;  viz.,  roads,  canals,  etc., 
as  in  said  act  enumerated. 

§  33.  The  constitution  of  the  State  of  California,  art.  IX. 
sec.  2,  appropriates  this  grant  to  the  support  of  the  common 
schools  ;  and  this  change  of  object  obtained  the  sanction  of 
Congress  by  its  admission  of  the  State  of  California  into 
the  Union,  September  9,  1850,  with  this  appropriation  en- 
grafted upon  her  constitution. 

The  State,  by  an  act  of  May  3,  1852,a  provided  for  the 
sale  of  warrants  for  these  five  hundred  thousand  acres,  at 
two  dollars  per  acre,  and  authorized  the  purchasers  to  locate 
the  warrants  upon  any '  vacant  and  unappropriated  lands 
belonging  to  the  United  States,  and  subject  to  such  location, 
which  was  further  provided  for  by  act  of  April  30,  1857. 

By  an  act  on  the  same  subject,  passed  by  the  Legislature 
April  23,  1858,  and  by  its  amendments  of  Feb.  18  and  March 
16, 1859,  the  price  was  lowered  to  one  dollar  and  twenty-five 
cents  per  acre,  with  interest  at  ten  per  cent,  per  annum  from 
the  date  of  location,  payable  as  therein  stated  ;  the  manner 
of  locating  in  a  United  States  land  office  was  prescribed, 
and  the  sale  in  like  manner  authorized,  of  the  two  townships 
for  a  seminary  of  learning,  and  the  ten  sections  for  public 
buildings,  granted  by  the  act  of  1853,  above  mentioned. 
The  proceeds  of  the  school  lands,  seminary  lands,  and  public 
building  lands,  to  constitute  separate  funds  for  the  further- 
ance of  their  specific  objects. 

§  34.  Congress  has  also  granted  to  the  several  States,  by 
act  of  Sept.  28,  1850,b  and  the  confirmatory  act  of  March  3, 
1857,c  the  swamp  and  overflowed  lands  within  their  limits  ; 
and  the  manner  in  which  the  State  of  California  is  willing 
to  dispose  of  these  lands,  at  the  rate  of  one  dollar  per  acre, 
has  been  regulated  by  acts  of  her  Legislature,  of  April  28, 
1855  ;d  March  13,  1858;  April  21,  1858;  and  April  18, 
1859. 

§  35.   The  title  to  water  lots,  however,  or  property  lying 


Wood's  Digest,  art.  2710  et  seq.  b  Ibid,  appendix,  p.  745. 

Ibid.  d  Ibid.  art.  2721  et  seq. 


24  MORTGAGES  IN  CALIFORNIA 

between  high-water  mark  and  ship-channel,  if  not  alienated 
before  the  admission  of  the  State  of  California  into  the 
Union,  must  be  derived  from  the  State  ;  for  the  eminent 
domain  over  the  shores  of  navigable  waters  and  the  soils 
under  them  belongs  to  the  respective  States,  as  an  incident 
of  State  sovereignty.  This  right  of  sovereignty  passed 
from  Mexico  to  the  United  States,  and,  on  the  admission  of 
California  into  the  confederacy,  the  title  passed  to  the 
State  ;a  and  although  her  ownership  is  attributed  to  her  for 
the  purpose  of  preserving  the  public  easement,  or  right  of 
navigation,  it  has  been  decided  that  she  may  exercise  her 
power,  in  certain  cases,  to  destroy  the  easement,  in  order  to 
subserve  the  general  good,  which,  when  done,  subjects  the 
land  to  private  proprietorship.1*  The  exercise  of  the  right 
of  the  State  in  this  respect  is  only  qualified  by,  and  therefore 
must  not  conflict  with,  the  right  to  regulate  commerce,  sur- 
rendered by  her  to  the  United  States  when  she  came  into  the 
Union.0 

§  36.  The  State  granted,  by  act  of  March  26,  1851;d  the 
use  and  occupancy  of  the  most  valuable  portion  of  the  beach 
and  water  property  on  the  water  front  of  the  city  of  San 
Francisco  to  said  city,  for  the  term  of  ninety-nine  years,  and 
provided,  by  act  of  May  18, 1853,e  for  the  sale  of  the  remain- 
ing interest  of  the  State  in  the  property. 

Under  an  erroneous  impression  as  to  her  rights  in  the 
premises,  the  city  had  already  disposed  of  nearly  all  of  this 
property,  mostly  by  a  sale  at  auction  in  January,  1850.  The 
legislative  grant  of  1851,  which  also  recognized  the  plan  of 
the  city  as  extended  into  the  water/  enured  by  its  terms 
immediately  to  the  benefit  of  the  bonaf.de  purchasers,  prior  to 
April  3,  1850,  from  the  city,  who  were  afterwards,  by  the 

a  See  Pollard's  Lessee  v.  Hagan  et  al.,  3  Howard's  S.  C.  Rep.  p.  212. 

b  Eldridge  v.  Crowell,  4  Cal.  Rep.  p.  80. 

c  Griffing  v.  Gibb  &  Frazer,  1  McAllister's  Rep.  p.  224,  In  a  case  where 
land  covered  by  tide-water  had  been  reclaimed,  ic  was  decided  that,  where 
the  easement  has  been  destroyed,  the  right  of  the  State  ceases,  except  to 
prosecute  for  perpresture,  and  have  the  easement  restored.  Guy  v.  Her- 
mance,  5  Cal.  Rep.  p.  73. 

d  Wood's  Digest,  art.  2728  et  seq. 

e  Ibid.  art.  2732  et  seq. 

f  Eldridge  v.  Crowell,  4  Cal.  Rep.  p.  80. 


RECORD.  25 

above  mentioned  act  of  1853,  enabled  to  buy  for  a  small  sum 
the  reversionary  interest  of  the  State,  thereby  completing 
tkeir  title. 

§  37.  By  act  of  Congress,  passed  March  3, 1855,a  a  bounty 
of  one  quarter  section  was  granted  to  every  person  who  has 
served  with  the  army  or  navy  of  the  United  States  in  time 
of  war,  the  warrants  issued  to  be  located  as  therein  stipu- 
lated. Many  grants  have  been  made  under  previous  acts  for 
the  same  purpose,  but  these  acts,  not  being  so  comprehensive 
in  their  nature,  are  not  here  specially  referred  to. 

§  38,  Every  title  to  land  in  California  has  its  origin 
either  in  a  Spanish  or  Mexican  grant,  in  one  of  the  acts  of 
Congress  above  referred  to,  (§§  31-34,  37,)  or  some  special 
authority  granted  by  Congress  ;  or,  in  the  case  of  property 
lying  betveen  high-water  mark  and  ship-channel,  (see  §§  35, 
36,)  in  a  grant  or  sale  by  the  owner  of  the  right  of  sove- 
reignty at  the  time  of  such  grant  or  sale. 

RECORD. 

§  39.  The  system  of  record  or  registration,  as  existing  in 
California  in  virtue  of  an  act  concerning  conveyances,  passed 
April  16, 1850,  and  amended  April  27,  1855,b  affords  great 
security  for  land  titles.  In  order  fully  to  realize  its  benefits, 
all  instruments  affecting  real  estate  should  be  recorded  with- 
out delay.  Amongst  its  provisions  are  the  following  : 

"  Sec.  24.  Every  conveyance  of  real  estate,  and  every 
instrument  of  writing,  setting  forth  an  agreement  to  convey 
any  real  estate,  or  whereby  any  real  estate  may  be  affected, 
proved,  acknowledged,  and  certified,  in  the  manner  prescribed 
in  this  act,  to  operate  as  notice  to  third  persons,  shall  be 
recorded  in  the  office  of  the  Recorder  of  the  county  in  which 
such  real  estate  is  situated,  but  shall  be  valid  and  binding 
between  the  parties  thereto,  without  such  record." 

"  Sec.  25.  Every  such  conveyance  or  instrument  of  writing, 
acknowledged  or  proved  and  certified,  and  recorded  in  the 
manner  prescribed  in  this  act,  shall,  from  the  time  of  filing 

*  Wood's  Digest,  appendix,  p.  754. 
b  Ibid.,  art.  338,  et  seq. 


26  MORTGAGES  IN  CALIFORNIA. 

the  same  with  the  Recorder  for  record,  impart  notice  to  all 
persons  of  the  contents  thereof ;  and  subsequent  purchasers 
and  mortgagees  shall  be  deemed  to  purchase  and  take  with 
notice." 

§  40.  "  Sec.  26.  Every  conveyance  of  real  estate  within 
this  State,  hereafter  made,  which  shall  not  be  recorded  as 
provided  in  this  act,  shall  be  void  as  against  any  subsequent 
purchaser,  in  good  faith,  and  for  a  valuable  consideration, 
of  the  same  real  estate,  or  any  portion  thereof,  where  his 
own  conveyance  shall  be  first  duly  recorded." 

§  41.  The  principal  object  of  laws,  which  require  deeds  and 
mortgages  to  be  recorded,  is  to  prevent  imposition  upon  sub- 
sequent purchasers  and  mortgagees  in  good  faith,  and  without 
notice  of  the  prior  deed  or  incumbrance,  but  not  to  protect 
them  when  they  have  such  noticed  That  is,  an  unrecorded 
instrument,  if  duly  executed,  and  when  executed  by  a  married 
woman,  also,  duly  acknowledged,  is  valid  against  a  subse- 
quent purchaser  or  mortgagee,  who  had  in  any  manner  actual 
notice  of  its  existence.  And  the  open,  notorious  possession 
of  real  estate,  by  one  having  an  unrecorded  deed  for  it,  (but 
only  where  he  is  himself  in  possession,  not  if  a  tenant  has 
possession,15)  has  been  held0  to  constitute  evidence  of  notice 
to  a  subsequent  purchaser  of  the  first  vendee's  title,  where 
such  possession  existed  at  the  time  of  the  acquisition  of  the 
title  or  deed  of  the  subsequent  vendee  from  the  common 
vendor. 

§  42.   The  conveyancing  act  further  provides  : 

"Sec.  33.  If  any  person  shall  convey  any  real  estate, 
by  conveyance  purporting  to  convey  the  same  in  fee  simple 
absolute,*1  and  shall  not  at  the  time  of  such  conveyance 

*  Woodworth  v.  Guzman,  1  Cal.  Rep.  p.  203. 

b  Smith  v.  Dall,  April  T.  1859. 

c  Hunter  v.  Watson  et  al.,  12  Cal.  Rep.  p.  363.  In  this  case  the  holder  of 
the  unrecorded  deed  had  been  in  open  and  notorious  possession  during  five 
years  previous  to  the  creation  of  the  subsequent  title,  and  the  subsequent 
purchaser  appears  to  have  been  aware  of  it. 

d  The  terms  "  fee  simple  absolute  "  are  used  to  denote  an  estate  of  inherit- 
ance conveyed  or  mortgaged.  The  word  "  absolute  "  adds  nothing  to  the 
force  of  the  preceding  terms  "  fee  simple,"  which  of  themselves  express  the 
highest  interest  one  can  possess  in  land.  Clarke  v.  Baker  et  al.,  January  T., 
1860. 


RECORD.  27 

have  the  legal  estate  in  such  real  estate,  but  shall  afterward 
acquire  the  same,  the  legal  estate  subsequently  acquired  shall 
immediately  pass  to  the  grantee,  and  such  conveyance  shall 
be  valid  as  if  such  legal  estate  had  been  in  the  grantor  at 
the  time  of  the  conveyance." 

§  43.  The  effect  of  the  provisions  of  the  foregoing  section 
upon  a  conveyance  of  premises  in  fee,  is  the  same  as  if  it 
were  written  upon  its  face  that  the  grantor  conveyed  all  the 
estate  which  he  then  possessed,  or  which  he  might  at  any 
time  thereafter  acquire.  The  section  applies  to  mortgages 
as  well,  and  as  fully,  as  to  conveyances  absolute  in  their 
form.  Whatever  in  the  instrument,  treating  it  as  a  convey- 
ance, would  operate  to  transfer  a  subsequently  acquired  title 
to  the  grantee,  must  equally  operate,  treating  the  instrument 
as  a  lien  or  incumbrance,  to  subject  such  acquired  interest  to 
the  purposes  of  the  original  security.11 

The  thirty-sixth  section  of  the  same  statute  expressly 
provides,  that  "the  term  *  conveyance,7  as  used  in  this  act, 
shall  be  construed  to  embrace  every  instrument  in  writing 
by  which  any  real  estate  or  interest  in  real  estate  is  created, 
aliened,  mortgaged,  or  assigned,  except  wills,  leases  for  a 
term  not  exceeding  one  year,  executory  contracts  for  the 
sale  or  purchase  of  lands,  and  powers  of  attorney.'7  The 
terms  " mortgage "  and  "to  mortgage"  have  but  to  be  substi- 
tuted for  their  corresponding  words  in  the  thirty-third  sec- 
tion, to  find  its  application  to  mortgages.0 

a  Clarke  v.  Boyreau  et  al.}  January  T.  1860. 

b  Clarke  v.  Baker  et  al.,  January  T.  1860.  "There  is  another  consideration 
growing  out  of  the  nature  of  the  contract  of  mortgage,  which  must  lead 
practically  to  the  same  result.  The  mortgagor  is  to  return  to  the  mortgagee 
the  money  and  interest  secured ;  until  this  is  consummated,  the  obligation 
rests  upon  the  mortgagor  to  do  nothing  which  can  impair  the  rights  of  the 
mortgagee,  or  embarrass  their  enforcement.  The  relation  between  the  mort- 
gagor and  mortgagee  is  one  which  requires  the  former  to  preserve  the  prop- 
erty for  the  purposes  of  the  security  for  which  it  was  pledged;  and  hence, 
to  insure  good  faith  and  fair  dealing,  he  is  forever  precluded  from  denying 
the  existence  of  the  lien  which  he  has  created,  or  attempting  to  defeat  its 
enforcement  against  the  property  upon  which  it  was  placed.  Equity  will  not 
suffer  the  mortgagor,  in  violation  of  good  faith,  by  any  act  to  impair  or 
destroy  the  security.  Any  claim  or  outstanding  title  he  may  have  purchased 
only  went  to  strengthen  his  own  title  to  the  premises,  and  hence,  through 
him,  to  give  possibly  greater  value  to  the  security."  Supreme  Court,  ibid. 


28  MORTGAGES  IN  CALIFORNIA. 

§  44.  The  act  also  provides,  that,  when  a  conveyance  or 
instrument,  conveying  or  affecting  real  estate,  is  acknow- 
ledged or  proved,  certified,  and  recorded,  as  prescribed,  "and 
it  shall  be  shown  to  the  court  that  such  conveyance  or  instru- 
ment is  lost,  or  not  within  the  power  of  the  party  wishing  to 
use  the  same,  the  record  thereof,  or  the  transcript  of  such 
record,  certified  by  the  Recorder  under  the  seal  of  his  office, 
may  be  read  in  evidence  without  further  proof."  (Sec.  30.) 
It  may  be  rebutted,  but  then  the  burden  of  proof  will  rest 
on  the  party  opposing. 

In  the  above  case,  however,  any  other  competent  evidence 
is  equally  admissible. 

§  45.  Before  entering  upon  the  duties  of  their  offices,  the 
Recorders  take  the  constitutional  oath  of  office,  and  enter 
into  bonds  in  sums  varying  in  different  counties,  with  two 
or  more  sufficient  sureties,  conditioned  for  the  faithful  per- 
formance of  their  duties  as  Recorders. 

It  is  by  law  made  the  duty  of  the  Recorders  to  make 
searches  for  conveyances,  mortgages,  and  all  other  instru- 
ments or  papers  recorded  or  filed  in  their  respective  offices, 
and  to  furnish  a  certificate  thereof. 


SEARCH    OF    TITLE. 

§  46.  Yet,  though  a  much  heavier  expense  is  incurred, 
particularly  when  sent  into  another  county,  a  Searcher  of 
Records  is  usually  employed  in  preference  to  a  Recorder, 
(whose  other  duties  besides,  might  often  cause  delay,)  for  the 
investigation  of  titles,  on  account  of  personal  confidence  in 
the  ability  and  integrity  of  the  Searcher,  and  his  experience  in 
such  matters,  which  causes  him  to  be  very  familiar  with  the 
details  of  a  search.  In  fact,  the  business  of  searching 
records,  on  account  of  its  importance  for  all  transactions  in 
real  estate,  and  the  vast  amount  of  time  involved,  has  grown 
to  be  a  profession.  The  Searcher  has  to  examine  the  records 
of  the  county  in  which  the  land  is  situated,  and  of  any  other 
county  whereof  such  county  may  formerly  have  constituted 
a  portion,  or  under  which  the  land  may  formerly  have  be- 
longed, and  to  prepare  from  such  records  an  abstract,  show- 


ACKNOWLEDGMENT   OB  PROOF.  29 

ing  all  changes  of  ownership  from  the  origin  of  the  title 
down  to  the  present  claimant,  and  containing  all  grants, 
patents,  deeds,  conveyances,  mortgages,  leases,  attachments, 
liens,  judgments,  street  assessments,  etc.,  which  may  affect 
the  property.*  For  judgments  he  will  also  have  to  examine 
the  judgment  dockets  of  the  courts,  and,  for  tax  sales  and 
unpaid  taxes,  the  books  in  the  Tax  Collector's  office.  This 
laborious  work  is  performed  with  great  care,  the  reputation 
and  consequently  the  business  of  the  Searcher  depending  on 
his  accuracy. 

This  abstract  is  then  submitted  to  an  attorney  or  counsel- 
lor at  law,  to  further  determine  the  validity  of  the  title  of 
the  mortgagor  to  the  property  offered  as  security,  upon  its 
legal  merits,  under  the  laws  of  the  land,  and  the  construction 
put  upon  them  by  the  courts. 


ACKNOWLEDGMENT    OR    PROOF. 

With  reference  to  the  acknowledgment  or  proof  of  convey- 
ances, the  conveyancing  act  provides,  in  general : b 

§  47.   "  Sec.  3.   Every  conveyance    in  writing,   whereby 

*  Liens  cannot  be  enforced  unless  action  on  the  same  be  brought  within 
certain  periods  of  time,  as  in  various  cases  by  statute  provided. 

b  With  reference  to  our  system  of  conveyancing,  the  greatest  attention 
should  be  given  to  an  exact  compliance  with  the  provisions  of  our  legislative 
acts,  though  there  are  decisions  of  our  courts  which  have  given  a  liberal 
construction  to  these  laws.  Most  of  the  embarrassments  ordinarily  occurring 
are  the  result  of  deviations,  in  apparently  unimportant  particulars,  from  the 
positive  provisions  of  the  acts  governing  conveyances  of  real  estate.  In- 
formal certificates  of  acknowledgment,  as  well  of  documents  executed  at 
home,  as  of  deeds,  powers  of  attorney,  etc  ,  coming  from  the  Eastern  States 
or  Europe,  have  often  delayed  the  recovery  of  funds,  or  have  led  to  the 
rejection  of  titles. 

It  has  therefore  been  considered  useful  to  insert  here  approved  forms  for 
the  cases  most  generally  occurring : 

Certificate  of  Acknowledgment  (see  §<>  47-49,  51,  53). 
STATE  OF  j  8g 

COCXTY    OF    J 

Ox  this  day  of A.  D.  One  Thousand  Eight  Hundred  and   

before  me,  a  Notary  Public  in  and  lor  said  County,  residing  therein, 

duly  commissioned  and  sworn,  personally  appeared  the  within  named  

whose  name  is  subscribed  to  the  foregoing  (or  annexed,  as  the  case  may  be)  instrument,  as  a 


30  MORTGAGES  IN  CALIFORNIA. 

any  real  estate  is  conveyed  or  may  be  affected,  shall  be 
acknowledged  or  proved  and  certified  in  the  manner  herein- 
after provided." 

"Sec.  5.  Every  officer  that  shall  take  the  proof  or  ac- 
knowledgment of  any  conveyance  affecting  any  real  estate 
shall  grant  a  certificate  thereof,  and  cause  such  certificate  to 
be  endorsed  or  annexed  to  such  conveyance  ;  such  certificate 
shall  be, 

1.  When    granted  by  any    Judge  or  Clerk,  under   the 
hand  of  such  Judge  or  Clerk,  and  the  seal  of  the  court ; 

2.  When  granted  by  an  officer  who  has  a  seal  of  office, 
under  the  hand  and  official  seal  of  such  officer." 

§  48.  "  Sec.  6.  No  acknowledgment  of  any  conveyance, 
whereby  any  real  estate  is  conveyed  or  may  be  affected,  shall 
be  taken,  unless  the  person  offering  to  make  such  acknow- 
ledgment shall  be  personally  known  to  the  officer  taking  the 
same  to  be  the  person  whose  name  is  subscribed  to  such 
conveyance  as  a  party  thereto,  or  shall  be  proved  to  be  such 
by  the  oath  or  affirmation  of  a  credible  witness." 


party  thereto,  personally  known  to  me  to  be  the  person  described  in,  and  who  executed,  the  said 

foregoing  (or  annexed)  instrument,  and  the  said  duly  acknowledged  to  me,  that  he 

executed  the  same  freely  and  voluntarily,  and  for  the  uses  and  purposes  therein  mentioned. 
i__/^  IN  WITNESS  WHEREOF,  I  have  hereunto  set  my  hand  and  affixed  my  official 

|  L.  s.  |  Seal,  at  my  office  in  the  County  of the  day  and  year  in  this 

*•  "T-'  '  Certificate  first  above  written. 

NOTARY  PUBLIC. 

Cei  tificate  of  Acknowledgment  by  Husband  and  Wife  (see  §§  47-49,  51,  54-57). 

CONSULATE  OF  THE  UNITED  STATES  OF  AMERICA, 

At  

O\  this  day  of  A.  D.  One  Thousand  Eight  Hundred  and   

b?fore  me,    a  Consul  of  the  United  States  of  America  for  ... 

appointed  to  reside  a,t  personally  appeared  the  within  named  

and  his  wife,  whose  names  are  subscribed  to  the  foregoing  (or  annexed,  as  the  case 

may  be)  instrument  as  parties  thereto,  severally  personally  known  to  me  to  be  the  same  persons 
described  in,  and  who  executed,  the  said  instrument,  and  they  severally  duly  acknowledged  to 
me  that  they  executed  the  same  freely  and  voluntarily,  for  the  uses  and  purposes  therein 
mentioned. 

Aud  the  said  wife  of  said  who  is  personally  known  to  me  to  be 

the  person  whose  name  is  subscribed  to  the  foregoing  (or  annexed)  instrument  as  a  party 
thereto,  having  been  by  me  first  made  acquainted  with  the  contents  of  said  instrument, 
duly  acknowledged  to  me,  on  an  examination  apart  from  and  without  the  hearing  of  her  said 
husband,  that  she  executed  the  same  freely  and  voluntarily,  for  the  uses  and  purposes  there- 
in mentioned,  without  fear  or  compulsion,  or  undue  influence  of  her  said  husband,  and  that 
she  does  not  wish  to  retract  the  execution  of  the  same. 

IN  WITNESS  WHEREOF,  I  have  hereunto  set  my  hand  and  affixed  my  official 

f  L.  s.  }  Seal,  at  my  office  in  the  City  of the  day  and  year  in  this 

*  "-v--'  *  Certificate  first  above  written. 

UNITED  STATES  CONSUL. 


ACKNOWLEDGMENT   OR  PROOF.  31 

§  49.  "Sec.  7.  The  certificate  of  such  acknowledgment 
shall  state  the  fact  of  acknowledgment,  and  that  the  person 
making  the  same  was  personally  known  to  the  officer  grant- 
ing the  certificate,  to  be  the  person  whose  name  is  subscribed 
to  the  conveyance  as  a  party  thereto,  or  was  proved  to  be 
such  by  the  oath  or  affirmation  of  a  credible  witness,  whose 
name  shall  be  inserted  in  the  certificate." 

§  50.  It  will  be  noted  that  the  nature  of  the  document 
occasions  no  change  in  the  form  of  the  certificate,  but  the  lat- 
ter varies  according  to  the  character  of  the  party  who  exe- 
cuted the  instrument. 

The  following  instructions  on  the  same  subjects  are  also 
general  in  their  nature,  but  subject  to  one  exception,  which 
will  be  noted  hereafter. 

§  51.  "  Sec.  8.  Such  certificate  shall  be  substantially  in 
the  following  form,  to  wit :  '  State  of  California,  county  of 

,  on  this day  of ,  A.  D. ,  personally 

appeared  before  me,  a  notary  public  (or  judge,  or  officer,  as 
the  case  may  be)  in  and  for  the  said  county,  A.  B.,  known  to 
me  to  be  the  person  described  in,  and  who  executed  the  fore- 
going instrument,  who  acknowledged  to  me  that  he  executed 
the  same  freely  and  voluntarily,  and  for  the  uses  and  pur- 
poses therein  mentioned.'  ; 

"  Sec.  9.  When  the  grantor  is  unknown  to  the  court,  or 
officer,  taking  the  acknowledgment,  the  certificate  may  be  in 
the  following  form,  to  wit :  *  State  of  California,  county  of 

on  this day  of A.  D. personally 

appeared  before  me,  a  notary  public  (or  officer  as  the  case 
may  be)  in  and  for  the  said  county,  A.  B.,  satisfactorily 
proved  to  me  to  be  the  person  described  in,  and  who  exe- 
cuted the  within  conveyance,  by  the  oath  of  C.  D.,  a  competent 
and  credible  witness  for  that  purpose,  by  me  duly  sworn,  and 
he  the  said  A.  B.  acknowledged  that  he  executed  the  same 
freely  and  voluntarily,  for  the  uses  and  purposes  therein 
mentioned.7  '3 

§  52.  "Sec.  10.  The  proof  of  the  execution  of  any  con- 
veyance whereby  any  real  estate  is  conveyed  or  may  be  af- 
fected, shall  be :  1 .  By  the  testimony  of  a  subscribing 
witness  ;  or,  2.  When  all  the  subscribing  witnesses  are  dead, 
or  cannot  be  had,  by  evidence  of  the  hand-writing  of  the 


32  .MORTGAGES  IN   CALIFORNIA. 

party,  and  of  at  least  one  subscribing  witness,  given  by  a 
credible  witness,  to  each  signature." 

Sec.  11-17  relate  at  large  the  circumstances  under  which, 
and  the  manner  how,  proof  of  execution  may  be  taken  and 
certified  to. 

§  53.  The  officers  by  whom  either  acknowledgment  or 
proof  may  be  taken,  subject  likewise  to  the  one  exception 
named  hereafter,  are  indicated  by  the  following  acts  : 

Sec.  4,  of  the   statute   above  referred  to,  provides : 

"  The  proof  or  acknowledgment  of  every  conveyance 
affecting  any  real  estate  shall  be  taken  by  some  one  of  the 
following  officers  : 

1.  If   acknowledged  or  proved  within  this  State,  by  some 
judge  or  clerk  of  a  court  having  a  seal,  or  some  notary  pub- 
lic or  justice  of  the  peace  of  the  proper  county. 

2.  If   acknowledged   or  proved  without  this  State,  and 
within  the  United  States,  by  some  judge  or  clerk  of  any  court 
of  the  United  States,  or  of  any  State   or  Territory  having  a 
a  seal,  or  by  any  commissioner  appointed  by  the  government 
of  this  State  for  that  purpose." 

3.  If  acknowledged  or  proved  without  the  United  States 
by  some  judge  or  clerk  of  any  court  of  any  State,  Kingdom 
or  Empire,  having  a  seal,  or  by  any  notary  public  therein, 
or  by  any  minister,  commissioner   or   consul  of  the  United 
States  appointed  to  reside  therein." 

By  act  of  19th  May,  1853,  sec.  107,a  power  was  conferred 
upon  the  Judges  of  the  Supreme  Court,  of  the  district  courts, 
of  the  Superior  Court  of  San  Francisco,b  and  of  the  county 
courts  in  any  part  of  the  State,  upon  Justices  of  the 
Peace  and  Recorders  within  their  respective  counties,  and 
upon  Recorders  and  Mayors  within  their  respective  cities,0  to 
take  and  certify  the  proof  and  acknowledgment  of  a  convey- 
ance of  real  property,  or  of  any  other  written  instrument. 

•  Wood's  Digest,  art.  717. 

b  This  court  has  since  been  abolished. 

c  The  terms  "respective  counties"  and  "respective  cities"  are  generally 
considered  to  require  that  the  acknowledgment  by  these  officers  must  be 
taken  in  such  county  or  city,  and  that  they  are  only  allowed  to  take  the 
acknowledgment  of  deeds  affecting  real  property,  if  the  property  be  situated 
within  their  respective  counties  or  cities. 


ACKNOWLEDGMENT  BY  MARRIED  WOMEN.       33 

Notaries  Public  were  authorized  to  the  same  effect  by  act 
of  April  30, 1857,  sec.  6.a 

By  act  of  20th  March,  1850,b  the  governor  of  the  State 
was  authorized  to  appoint  in  each  of  the  United  States,  and 
by  amendment  passed  llth  February,  1858,  also  in  each  of 
the  territories  and  districts  of  the  United  States,  and  in 
each  foreign  State,  territory  and  colony,  Commissioners  of 
Deeds,  to  administer  oaths  and  to  take  depositions  and  affi- 
davits to  be  used  in  this  State,  and  also  to  take  the  acknowl- 
edgment or  proof  of  any  deed,  or  other  instrument  to  be 
recorded  in  this  State,  with  the  same  force  and  effect  in  law, 
to  all  intents  and  purposes,  as  if  done  and  certified  by  any 
officer  within  this  State  authorized  by  law  to  perform  such 
acts. 

ACKNOWLEDGMENT   BY   MARRIED    WOMEN. 

§  54.  The  exception  above  alluded  to,  relates  to  the  ac- 
knowledgment of  the  execution  of  deeds  by  married  women.0 
This  has  been  provided  for  in  the  conveyancing  act  in  the 
following  manner  : 

"  Sec.  19.  A  married  woman  may  convey  any  of  her  real 
estate  by  any  conveyance  thereof,  executed  and  acknowledged 
by  herself  and  her  husband,  and  certified  in  the  manner 
hereinafter  provided,  by  the  proper  officer  taking  the  ac- 
knowledgment." 

"Sec.  21.  Any  officer  authorized  by  this  act  to  take  the 
proof  or  acknowledgment  of  any  conveyance  whereby  any 
real  estate  is  conveyed  or  may  be  affected,  may  take  and  cer- 
tify the  acknowledgment  of  a  married  woman  to  any  such 
conveyance  of  real  estate." 

These  officers  are  named  in  sec.  4,  inserted  in  §  53. 

§  55.  "  Sec.  22.  No  such  acknowledgment  shall  be  taken, 
unless  such  married  woman  shall  be  personally  known  to  the 
officer  taking  the  same,  to  be  the  person  whose  name  is  sub- 
scribed to  such  conveyance,  as  a  party  thereto,  or  shall  be 


ft  Wood's  Digest,  art.  2844.  b  Ibid.  art.  300. 

c  That  is,  during  the  lifetime  of  the  husband ;  acknowledgment  by  a  widow 
does  not  differ  from  that  by  a  single  person. 


34  MORTGAGES  IN  CALIFORNIA. 

proved  to  be  such  by  a  credible  witness  ;  nor  unless  such 
married  woman  shall  be  made  acquainted  with  the  contents 
of  such  conveyance,  and  shall  acknowledge  on  an  examina- 
tion, apart  from  and  without  the  hearing  of  her  husband,  that 
she  executed  the  same  freely  and  voluntarily,  without  fear  or 
compulsion,  or  undue  influence  of  her  husband,  and  that  she 
does  not  wish  to  retract  the  execution  of  the  same." 

§  56.  Acknowledgments  under  these  provisions  will  be 
good  and  sufficient  for  all  deeds  by  married  women,  including 
a  conveyance  of  the  homestead,  but  excepting  deeds  affecting 
their  separate  estate. 

The  form  of  the  acknowledgment  of  the  latter  deeds,  un- 
less made  under  the  act  of  1855,  noted  below,  is,  like  that  of 
all  other  conveyances  by  married  women,  controlled a  by  sec. 
22,  quoted  above,  but  the  officers  by  whom  it  may  be  taken, 
are  not  all  the  same. 

§  57.  The  sixth  section  of  the  act  of  April  17, 1850,  (passed 
subsequent  to  the  conveyancing  act,)  as  amended  Feb.  11, 1858, 
provides  that  "  no  sale  or  other  alienation  of  any  part  of  the 
separate  property  of  the  wife  can  be  made,  nor  any  lien  or 
encumbrance  created  thereon,  unless  by  an  instrument  in 
writing,  signed  by  the  husband  and  wife,  and  acknowledged 
by  her  upon  an  examination  separate  and  apart  from  her  hus- 
band, before  any  judge  of  a  court  of  record  or  notary  public  ; 
or,  if  executed  out  of  this  State,  then  so  acknowledged  be- 
fore some  judge  of  a  court  of  record,  or  before  a  commissioner 
appointed  under  the  authority  of  this  State  to  take  acknowl- 
edgments of  deeds  ;  or  before  any  minister,  secretary  of  le- 
gation, or  consul  of  the  United  States,  appointed  for  and 
residing  in  the  foreign  country  in  which  the  said  deed  is  to 
be  acknowledged." 

§  58.  The  foregoing  instructions  apply  to  the  execution 
of  deeds  by  married  women  for  the  conveyance  of  their  sep- 
arate estate,  where  the  husband  joins  in  their  execution.  But 
married  women,  (when  residing  in  California,)  have  been 
authorized  by  the  first  section  of  an  act  passed  Feb.  14, 1855,b 
to  convey  their  separate  estate  as  fully  as  if  unmarried,  where 
the  husband  has  not  been  bona  fide  residing  in  this  State  for 

a  Pease  v.  Barbiers,  10  Gal.  Rep.  p.  486. 
b  Wood's  Digest,  art.  2630. 


ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  35 

one  year  previous,  (see  §  77,)  and  the  acknowledgment  for 
a  conveyance  under  this  act  is  therein  provided  for  as  fol- 
lows : 

"  Sec.  2.  The  execution  of  an  instrument  of  conveyance  by 
a  married  woman,  independent  of  her  husband,  as  provided 
in  the  preceding  section,  shall  be  acknowledged  before  the 
district  judge  of  the  county,  in  which  the  lands  described  in 
the  conveyance  are  located,  and  the  judge  taking  such 
acknowledgment,  shall,  before  he  certify  the  same,  be  satis- 
fied by  the  oaths  of  at  least  two  credible  disinterested  citi- 
zens of  this  State,  that  the  -husband  of  such  married  woman 
does  not,  and  for  one  year  next  preceding  the  day  of  acknowl- 
edgment, has  not  resided  in  this  State,  which  fact,  and  the 
names  of  the  witnesses  by  whom  the  same  was  proved,  shall 
be  recited  in  the  certificate  of  acknowledgment." 

§  59.  Though,  in  general,  deeds  which  are  not,  or  have  been 
defectively  acknowledged,  are  binding  between  the  parties 
thereto,  and  operate  as  notice  to  third  parties  aware  of  their 
existence,  it  is  not  so  with  deeds  of  married  women.  At 
common  law  the  civil  existence  of  the  wife  was  merged  in 
that  of  her  husband  ;a  she  could  make  no  contract.  The 
common  law  being  the  law  of  this  State,  except  in  so  far  as 
modified  by  its  constitution  or  laws,  the  statute  taking  away 
this  disability  of  married  women,  like  any  other  statute 
changing  the  operation  of  the  common  law,  must  be  strictly 
construed,  and  its  provisions  as  strictly  complied  with. 

The  statute  of  April  17, 1850,  constitutes  the  acknowledg- 
ment a  necessary  part  of  the  conveyance  of  the  estate  of  a 


»  But  in  equity,  the  right  which  the  husband  had  at  law,  to  his  wife's  real 
estate,  might  be  effectually  excluded  by  a  limitation  to  her  separate  use. 
Though  not  absolutely  necessary  when  there  is  a  clear  trust  by  a  direct  gift 
to  the  \\  ife  herself,  real  estate,  limited  to  the  separate  use  of  a  married  woman, 
is  more  usually  and  properly  secured  to  her  by  vesting  it  in  trustees.  Hill  on 
Trustees,  pp.  *406,  *407.  Although  this  mode  of  proceeding  has  been  rendered 
unnecessary  in  this  State  by  the  act  of  April  17,  1850,  yet  the  wife's 
separate  property  is  in  many  instances  so  conveyed  in  trust.  The  legal  estate 
is  thereby  vested  in  the  trustees,  but  the  husband  and  wife  should  join  in  the 
execution  of  any  deed  affecting  such  separate  property,  to  show  their  assent 
to  the  act  of  the  trustees.  The  certificate  of  the  acknowledgment  by  the  lat- 
ter, should  state  the  fact :  that  they  acknowledged  the  execution  of  the  deed 
as  trustees  to  the  separate  use  of  the  wife. 


36  MORTGAGES  IN  CALIFORNIA. 

married  woman.    Without  it,  or  with  a  defective  acknowl- 
edgment, the  deed  is  absolutely  void.* 

§  60.  On  account  of  the  particular  requirements  of  the 
law  with  reference  to  the  acknowledgment  of  deeds  convey- 
ing the  estate  of  a  married  woman,  the  better  opinion  is  that 
she  cannot  act  by  an  attorney,  but  only  direct. 

*  Selover  v.  American  Russian  Comm.  Co.,  7  Ccd.  Rep.  p.  266.  Morrison  v. 
Wilson,  April  T.,  1859.  Under  the  statute,  no  presumption  of  acknowledg- 
ment, on  the  part  of  a  married  woman,  to  a  deed,  arises  from  the  fact  of  her 
executing  it.  Pease  v.  Barbiers,  10  Cal.  Rep.  p.  436.  It  is  not  in  the  power 
of  a  court  of  equity  to  compel  a  married  woman  to  correct  an  insufficient 
acknowledgment.  Barrett  v.  Tewksbury,  9  Cal.  Rep.  p.  13. 


CHAPTER  III. 


PROMISSORY  NOTE.  — INTEREST.— MORTGAGE.—  HOMESTEAD 
SEPARATE  PROPERTY.  —  TAXES.  —  INSURANCE. 


PROMISSORY   NOTE. 

§  61.  The  evidence  of  the  debt,  to  be  secured  by  mortgage, 
is  generally  a  promissory  note.  Occasionally  a  bond  under 
seal  is  used,  but  this  is  a  more  lengthy  and  a  more  formal 
instrument,  whilst  its  use  gives  no  advantages  over  the  note. 
Mortgages  are  also  made  without  either  note  or  bond,  consti- 
tuting that  document  itself  the  sole  evidence  of  debt.  But, 
though  no  separate  paper  for  the  purpose  of  evidencing  the 
debt  is  required*  this  mode  is  seldom  adopted,  and  seems  less 
desirable.  Occasionally  mortgage  deeds  are  handled,  and 
the  mortgagee,  for  instance,  would  have  no  written  acknowl- 
edgment of  the  debt  and  its  terms,  in  his  possession,  until  the 
mortgage-deed  is  returned  from  the  recorder's  office. 

In  most  cases  the  promissory  note  and  mortgage  are  made 
to  provide  that  the  principal  debt  shall  become  due  and  pay- 
able,b  at  the  option  of  the  mortgagee,  upon  any  default  in  the 
payment  of  interest.  The  mortgagee  thereby  reserves  the 
right  to  sue  for  interest  separately,  which  he  might  prefer  to 
a  foreclosure  upon  principal  and  interest,  in  cases  where  pay- 
ment of  interest  can  be  enforced  independently  of  the  prem- 
ises pledged,  and  without  disturbing  his  mortgage. 

a  Whitney  v.  Buchanan,  April  T.  1859. 

b  The  promissory  note  is  often  made  payable  at  a  specified  place.  In  an 
action  against  the  maker  of  such  a  note,  it  is  not  necessary  to  aver  or  prove 
presentment  at  maturity  at  that  place,  and  refusal  to  pay.  A  failure  to  make 
such  presentment  could  only  be  pleaded  in  defence,  as  to  the  question  of  costs 
and  damages.  Montgomery  v.  Tutt  et  al.,  11  Cal.  Rep.  p.  307.  But  such  pre- 
sentment is  necessary  to  hold  endorsers  liable  on  the  note,  and  must  be  proved 
in  an  action  against  them. 


38  MORTGAGES  IN  CALIFORNIA. 


INTEREST. 

§  62.  The  interest  of  money  is  regulated  by  act  of  March 
13,  1850,  as  follows  :  a 

"Sec.  1.  When  there  is  no  express  contract  in  writing, 
fixing  a  different  rate  of  interest,  interest  shall  be  allowed  at 
the  rate  of  ten  per  cent,  per  annum,  for  all  moneys  after  they 
become  due  on  any  bond,  bill,  promissory  note,  or  other  in- 
strument of  writing,  on  any  judgment  recovered  before  any 
court  in  this  State,  for  money  lent,  for  money  due  on  the  set- 
tlement of  accounts,  from  the  day  on  which  the  balance  is 
ascertained,  and  for  money  received  to  the  use  of  another. 

"  Sec.  2.  Parties  may  agree  in  writing  for  the  payment  of 
any  rate  of  interest  whatever  o'n  money  due,  or  to  become 
due  on  any  contract.  Any  judgment  rendered  on  such  con- 
tract shall  conform  thereto,  and  shall  bear  the  interest  agreed 
upon  by  the  parties,  and  which  shall  be  specified  in  the  judg- 
ment. 

"Sec.  3.  The  parties  may,  in  any  contract  in  writing, 
whereby  any  debt  is  secured  to  be  paid,  agree,  that  if  the  in- 
terest on  such  debt  is  not  punctually  paid,  it  shall  become  a 
part  of  the  principal,  and  thereafter  bear  the  same  rate  of 
interest  as  the  principal  debt."b 

a  Wood's  Digest,  art.  2838.  This  act  only  affects  contracts  entered  into  in 
California  since  its  enactment.  Interest  follows  the  contract  according  to  the 
law  in  existence  at  the  time  and  place  of  the  contract,  or  of  the  performance 
of  it.  A  subsequent  change  of  the  legal  rate  of  interest  does  not  affect  the 
contract.  Aguirre  v.  Packard,  Admin.,  October  T.  1859;  Macoleta  v.  Pack- 
ard, Admin..  October  T.,  1859. 

b  It  may  be  here  stated  that  the  rule  for  casting  interest,  where  partial 
payments  have  been  made,  is  to  apply  the  payment  in  the  first  place  to  the 
discharge  of  the  interest  then  due;  if  the  payment  exceeds  the  interest,  the 
surplus  goes  towards  discharging  the  principal,  and  the  subsequent  interest 
is  to  be  computed  on  the  balance  of  the  principal  sum  remaining  unpaid.  If 
the  payment  be  less  than  the  interest  due,  the  surplus  of  interest  must  not  be 
taken  to  augment  the  principal,  but  interest  continues  on  the  former  principal 
until  the  period  when  the  payments,  taken  together,  exceed  the  interest  due. 
Connecticut  v.  Jackson,  1  Johns.  Chan.  Rep.  p.  13.  This  rule  prevails  unless 
changed  by  agreement  of  parties.  Backus  v.  Minor,  3  Gal,  Rep.  p.  232. 

Promissory  notes  usually  stipulate  payment  of  interest  until  paid;  but, 
notwithstanding  that  nothing  is  said  about  interest  after  maturity,  a  money 
demand  draws  interest  after  maturity  at  whatever  rate  was  expressed  in  the 


MORTGAGE.  39 


MORTGAGE. 

§  63.  A  mortgage  on  real  property  in  the  State  of  Cali- 
fornia, is  a  lien  upon  an  estate  by  way  of  pledge  for  the  se- 
curity of  debt,  and  to  become  void  on  payment.  At  common 
law,  a  mortgage  vested  the  legal  title  in  the  mortgagee,  sub- 
ject to  be  defeated  by  the  performance  of  the  condition  sub- 
sequent, that  is,  payment  at  the  appointed  time,  but  this  is 
entirely  changed  by  our  system  ;  the  legal  title  to  the  estate, 
and  the  right  of  possession,  remain  in  the  mortgagor,  subject 
to  be  divested  by  a  foreclosure  and  sale.a 

A  mortgage  is  a  mere  lien,  and  default  in  the  payment  of 
the  money  secured,  does  not  change  its  character,b  nor  can 
any  breach  of  its  conditions,  of  itself,  possibly  vest  the  title 
in  the  mortgagee.6  He  can  by  no  act  of  his  become  the  owner 
of  the  property,  except  by  purchase  upon  sale,  consummated 
by  conveyance. 

Nor  is  he  entitled  to  the  possession ;  the  act  of  April  29, 
1851,  to  regulate  proceedings  in  civil  cases,  provides  ex- 
pressly (sec.  260) d  that  "  a  mortgage  of  real  property  shall 
not  be  deemed  a  conveyance,  whatever  its  terms,  so  as  to 
enable  the  owner  of  the  mortgage  to  recover  possession  of 
the  real  property  without  a  foreclosure  and  sale." 

§  64.  The  form  of  the  mortgage  deed  is  generally  the 
same  as  that  of  an  ordinary  deed,  or  conveyance,  of  real 
property ,e  but  stating  that  it  is  made  because  ot  and  tor  the 

written  contract,  and  a  judgment  thereon  bears  the  same  rate  of  interest. 
Kohler  v.  Smith.  2  Cal.  Rep.  p.  597.  But  though  the  contract  may  stipulate 
compound  interest  on  the  debt,  interest  on  a  judgment  cannot  be  compounded. 
See  post,  $  115,  note. 

*  Belloc  v.  Rogers,  9  Cal  Sep.  p.  123. 

b  McMillan  v.  Richards,  9  Cal.  Rep.  p.  365. 
e  Godeffroy  v.  Caldwell,  2  Cal.  Rep.  p.  489. 
d  Wood's  Digest,  art.  994. 

•  But  a  mortgage  may  exist  in  various  other  modes ;  for  instance,  where  a 
conveyance  of  land,  on  its  face  absolute  and  for  a  valuable  consideration,  and 
a  defeasance,  or  an  agreement  to  reconvey  on  payment  of  a  certain  sum  with 
interest  on  a  certain  day,  are  executed  at  the  same  time,  the  deed  will  be 
treated,  as  between  the  parties,  as  a  mortgage.     In  chancery,  whenever  it 
appears  from  written  evidence,  that  land  is  conveyed  as  a  pledge  to  secure 
the  payment  of  money,  the  conveyance  will  be  so  treated,  in  whatever  form 


40  MORTGAGES  IN  CALIFORNIA. 

better  securing  the  payment  of  a  certain  indebtedness,  with 
the  proviso  added  that  if  the  debt  is  paid  at  maturity,  then 
the  conveyance  to  be  void,  but  if  not  paid,  the  owner  may 
foreclose  the  mortgage,  and  have  the  property  therein  de- 
scribed sold,  and  the  debt  and  all  costs  of  foreclosure  paid 
from  the  proceeds  of  the  sale.  Sometimes  also,  the  mortgage 
empowers  the  mortgagee  to  sell  in  a  certain  manner,  and  to 
execute  a  conveyance. 

The  promissory  note  should  be  so  described  in  the  mort- 
gage as  to  identify  it  beyond  question.  More  generally  the 
contents  of  the  note  are  recited  at  large. 

§  65.  The  mortgage  deed  should  contain  a  waiver  of  the 
rights  of  homestead,  and  separate  property  of  married  women, 
if  such  rights  attach  to  the  property  pledged,  and  should  con- 
dition for  the  payment,  by  the  mortgagor,  of  taxes,  as  well  on 
the  mortgage  as  on  the  property,  street  assessments,  and  pre- 
miums of  insurance ;  the  mortgagee  reserving  the  right,  if 
not  so  paid  when  due,  to  effect  such  payments,  the  same  with 
interest  to  be  a  charge  on  the  estate. 

§  66.  The  time  for  which  mortgages  are  made  in  Califor- 
nia, is  generally  one  or  two  years  ;  sometimes  for  a  much 
longer  period,  and  this  mostly  when  the  lender  allows  the 
principal  sum  to  be  repaid  in  monthly  or  other  stated  instal- 
ments. Mortgages  are  frequently  allowed  to  remain  in  force 
for  an  indefinite  period,  but  many  mortgagees  object  to  a  con- 
tinuance exceeding  four  years  after  maturity  of  the  debt,  on 
the  ground  that  the  statute  of  limitations  (Sec.  17,  see  §  136) 
bars  all  actions  at  law  on  any  written  evidence  of  debt,  un- 
less commenced  within  four  years  from  its  maturity. 

§  67.  The  question  whether  the  operation  of  the  statute 
of  limitations  upon  the  promissory  note  secured  by  the  mort- 
gage, will,  after  the  time  limited  for  the  commencement  of 
an  action  upon  the  note,  prevent  the  mortgagee  from  en- 
forcing in  a  court  of  equity  his  lien  upon  the  mortgaged 
property,  has  not  yet  come  before  the  Supreme  Court  of  this 
State.  But  the  decisions  of  some  of  the  highest  tribunals  in 

the  land  is  pledged.  Hicks  v.  Lowe,  10  Gal.  Rep.  p.  197.  See  also  Woodworth 
v.  Guzman,  1  Ctl.  Rep  p.  203 ;  Ferguson  v.  Miller,  4  Gal.  Rep.  p.  97.  In  order, 
however,  to  render  such  transaction  a  security  against  subsequent  purchasers 
and  mortgagees,  both  instruments  should  be  recorded. 


MORTGAGE.  41 

the  United  States,  seem  to  leave  little  doubt  as  to  the  manner 
in  which  the  Court  would  decide  this  question. 

Parsons  says  in  his  treatise  on  Mercantile  Law,  (250):  "  It 
is  important  to  remember  that  the  statute  of  limitations  does 
not  avoid  or  cancel  the  debt,  but  only  provides  that  no  action 
shall  be  maintained  upon  it,  after  a  given  time."  "  But  it 
does  not  follow,  that  no  right  can  be  sustained  by  the  debt, 
although  the  debt  cannot  be  sued.7'  "  His  pledge  or  mort- 
gage is  as  valid  and  effectual  as  it  was  before,  and  as  far  as 
it  goes,  his  debt  is  secure  ;  and  for  the  purpose  of  realizing 
this  security,  by  foreclosing  a  mortgage  for  instance,  he  may 
use  whatever  process  is  necessary  on  the  note  itself." 

In  Thayer  v.  Mann*  it  is  said  :  "  The  debt  remains,  al- 
though the  statute  may  discharge  the  remedy  on  the  note, 
and  a  reference  to  the  condition  in  the  mortgage  shows  that 
it  is  to  be  and  remain  in  force  until  the  debt  shall  be  paid." 
In  the  case  of  Elkins  vs.  Edwards*  it  is  expressly  decided,  that 
when  a  mortgage  is  given  to  secure  a  note,  and  the  remedy  of 
the  latter  is  barred  by  the  statute  of  limitations,  and  the  debt 
is  unpaid,  the  creditor  may  avail  himself  of  his  lien  and  fore- 
close his  mortgage.  And  the  court  gives  as  the  reason  of 
his  ability  to  do  so,  that  he  (the  creditor)  stipulated  by  con- 
tract for  the  remedies  against  his  debtor,  to  enforce  the  col- 
lection of  his  demands ;  these  two  remedies  are  totally  dis- 
tinct ;  the  one  by  an  action  at  law  on  the  note — one  of  the 
written  evidences  of  his  debt — the  other  by  a  bill  of  equity, 
to  procure  a  sale  of  the  mortgaged  premises. 

In  Soy  v.  Jldamsf  it  is  said :  "  A  mortgage  security  has  not 
been  dot  med  to  be  within  any  branch  of  the  statute  of  lim- 
itations, ....  he  has  not  been  allowed  to  defeat  the 
right  of  the  mortgagee  by  showing  that  the  personal  security 
to  which  the  mortgage  security  is  collateral  security,  has  be- 
come barred  by  the  statute  of  limitations." 

Judge  McAllister,  of  the  United  States  Circuit  Court  for 
this  State,  after  quoting  the  above  and  many  other  author- 
ities, affirmed  this  doctrine  in  the  case  of  Spark  et  al.  v.  Pico, 
decided  at  the  January  Term,  1859.d 


•  19  Pick.  Rep.  pp.  535,  537.  b  8  Oeo.  p.  325. 

•  26  Maine,  p.  330.  *  1  McAllister's  Rep.  p.  497. 


42  MORTGAGES  IN  CALIFORNIA. 

On  the  same  grounds,  Judge  Norton,  of  the  Twelfth  Dis- 
trict Court  in  this  State,  overruled  a  demurrer  setting  up  the 
statute  of  limitations,  and  ordered  decree  of  foreclosure  to 
be  entered  in  the  case  of  Lacy  v.  Lott.* 

§.  68.  But  admitting,  as  is  most  probable,  that  the  mort- 
gagee will  be  allowed  likewise  by  the  Supreme  Court  of  this 
State,  to  avail  himself  of  his  lien,  though  action  on  the  note 
be  barred,  yet  the  latter  fact  prevents  him  from  obtaining  a 
personal  judgment  against  his  debtor,  and  he  would  therefore 
have  no  means  of  enforcing  payment  of  any  deficiency  re- 
maining after  sale  of  the  mortgaged  premises. 


HOMESTEAD. 

§  69.  The  right  of  homestead  should  be  relinquished  to 
the  mortgagee,  wherever  it  may  exist,  or  it  will  take  pre- 
cedence of  the  mortgage.  This  right  of  homestead  takes,  to 
a  certain  extent,  the  place  of  the  right  of  dower  in  other 
countries. 

The  constitution  of  this  State  provides  (art.  XI.  sec.  15) 
that  the  legislature  shall  protect  by  law  the  homestead  of  all 
heads  of  families,  or  a  certain  portion  of  it,  from  forced  sale, 
and  the  legislature  has  given  effect  to  this  provision  by  an 
act  passed  April  21,  1851,b  in  the  following  manner  : 

§  70.  "Sec.  1.  The  homestead,  consisting  of  a  quantity  of 
land,  together  with  the  dwelling  house  thereon  and  its  appurte- 
nances, not  exceeding  in  value  the  sum  of  five  thousand  dol- 
lars,0 to  be  selected  by  the  owner  thereof,  shall  not  be  subject 
to  forced  sale  on  execution,  or  any  other  final  process  from  a 
court,  for  any  debt  or  liability  contracted  or  incurred  after 
thirty  days  from  the  passage  of  this  act,  or  if  contracted 

a  December,  1859.  b  Wood's  Digest,  art.  2580,  et  seq. 

c  Where  the  property  claimed  as  a  homestead  exceeds  in  value  the  sum  of 
five  thousand  dollars,  the  act  provides  in  what  manner  so  much  of  it  as  will 
not  exceed  this  amount  shall  be  set  apart.  In  cases  where  such  segregation 
is  impracticable,  it  is  the  duty  of  appraisers  to  ascertain  and  report  the  value 
of  the  property;  then,  after  taking  five  thousand  dollars  from  the  valuation, 
if  it  exceed  that  amount,  the  remainder  will  be  the  undivided  interest  in  the 
property  subject  to  be  sold  on  execution,  Gary  v.  Easterbrook,  6  Cal.  Rep. 
p.  457. 


HOMESTEAD.  43 

or  incurred  at  any  time  in  any  other  place  than  in  this 
State." 

§  71.  "Sec.  2.  Such  exemption  shall  not  extend  to  any  me- 
chanic's, laborer's  or  vendor's  lien,  or  to  any  mortgage  lawfully 
obtained  ;  *  but  no  mortgage,  sale,  or  alienation  of  any  kind 
whatever  of  such  land  by  the  owner  thereof,  if  a  married 
man,  shall  be  valid  without  the  signature  of  the  wife  to  the 
same,  acknowledged  by  her  separately  and  apart  from  her 
husband  ;  provided,  that  the  wife  be  a  resident  of  this  State, 
and  that  such  signature  and  acknowledgment  shall  not  be 
necessary  to  the  validity  of  any  mortgage  upon  the  land 
executed  before  it  became  the  homestead  of  the  debtor,  or 
executed  to  secure  the  payment  of  the  purchase-money."5 

§  72.  "  Sec.  10.  The  homestead  and  other  property  exempt 
from  forced  sale,  upon  the  death  of  the  head  of  the  family, 
shall  be  set  apart  by  the  Probate  Court  for  the  benefit  of  the 
surviving  wife  and  his  own  legitimate  children,"  etc.c 

§  73.  The  homestead  is  the  dwelling-place  of  the  family 
where  they  permanently  reside/1  but  it  cannot  attach  upon 
land  held  in  common,  or  by  joint  tenancy.6  The  premises  are 

a  Nor  to  taxes.     See  sec.  11  of  the  same  act. 

b  When  a  mortgage  is  given  as  security  for  the  purchase-money  of  the 
moitgaged  premises,  no  homestead  can  be  carved  out  of  the  property  so  as 
to  impair  the  rights  of  the  mortgagee.  Montgomery  v.  Tutt  et  al.,  11  Col. 
Rep.  p.  190.  Or  even  when  made  for  money  obtained  to  pay  off  the  vendor's 
lien.  A  clear  title  to  the  homestead  cannot  vest  until  the  payment  of  the 
purchase-money ;  and  it  makes  no  difference,  in  equity,  whether  the  first  debt 
be  renewed  or  another  debt  created  to  raise  money  to  pay  it  off.  Carr  v. 
Caldwell,  10  Ccd  Rep.  p.  380.  Where  a  mortgage,  executed  before  the  prop- 
erty became  a  homestead,  is  cancelled  by  means  of  money  raised  on  a  new 
mortgage  in  which  the  wife  does  not  join,  the  property  being  then  a  home- 
stead, the  substance  of  the  transaction,  as  regarded  in  equity,  is  an  assign- 
ment of  the  old  mortgage  in  consideration  of  the  money  advanced.  Swift  v. 
Kraemer,  April  T.  1859. 

«  The  wife  has  no  right  to  the  homestead  independent  of  her  husband;  if 
surviving  him,  she  takes  the  homestead  as  property  set  apart  to  her  by  law, 
upon  the  distribution  of  her  husband's  estate.  Gee  v.  Moore,  Oct.  T.  1859. 
But  whether  she  succeeds  to  the  homestead  in  her  own  right,  or  as  trustee 
for  the  legitimate  children,  where  there  are  such,  of  the  deceased,  has,  it 
seems,  not  yet  been  decided.  See  In  re  Tomkins'  Estate,  12  Gal.  Rep.  p.  114. 

u  Cook  v.  McChristian,  4  Gal.  Rep  p.  23. 

e  Davis  v.  JFleishacker,  5  Gal.  Rep.  p.  244 ;  Reynolds  v.  Pixley,  6  Ibid,  p 
165 ;  Kellersberger  v.  Kopp,  6  Ibid.  p.  563. 


44  MORTGAGES  IN  CALIFORNIA. 

never  impressed  with  the  character  of  homestead  until  actual 
residence  on  them  by  the  family .a  As  long  as  the  premises 
retain  this  character,  they  cannot  be  alienated,  except  by  a 
joint  deed,  executed  by  both  husband  and  wife,  and  properly 
acknowledged  (see  §§  54,  55  ;)  if  they  should  undertake  to 
execute  two  separate  deeds  for  the  homestead,  it  has  been 
heldb  that  both  would  be  invalid.  A  conveyance  by  the  hus- 
band alone  is  absolutely  \oid  as  to  the  homestead  value,0  (but 
valid  for  any  excess,)  except  where  the  signature  of  the  wife 
is  not  required,  under  the  proviso  in  sec.  2  of  the  homestead 
act  (ante,  §  71). 

But  the  invalidity  of  a  deed  for  the  homestead,  on  account  of 
its  not  having  the  wife's  signature  and  acknowledgment,  only 
goes  to  the  extent  essential  to  the  object  of  the  statute. 
After  the  termination  of  the  homestead  by  absolute  aban- 
donment^ whereof  removal  by  the  husband  with  his  family  is 
presumptive  evidence,6  or  by  the  death  of  the  wife  without  chil- 
dren/ the  husband  cannot  recover  possession  under  the  act. 

§  74.  The  separate  property  of  the  husband  may  become  the 
homestead,  as  well  as  the  common  property  acquired  after  mar- 
riage. But  it  is  very  doubtful  whether  the  separate  property 
of  the  wife  can  become  the  homestead.  The  constitution  ex- 
pressly says,  that  all  property  of  hers  acquired  in  a  certain 
manner,  shall  be  her  separate  property  (art.  XI.  §  14),  and  it 
may  admit  of  much  doubt  whether  the  mere  act  of  the  wife, 
of  residing  with  her  husband  on  the  premises,  it  being  her 
duty  to  live  with  her  husband,  can  be  construed  into  a  change 
of  her  constitutional  right  with  respect  to  her  separate 
property.5 

In  the  absence  of  a  decision  on  this  point  since  such  doubts 
have  been  expressed,  it  would  appear  prudent  by  taking  a 
mortgage  on  separate  property  of  the  wife,  which  is,  or  at 
any  time  had  been,  the  residence  of  the  family,  to  have  both 


Gary  v.  Tice,  6  Cal  Rep.  p.  625;  Benedict  v.  Bunnell,  7  Ibid.  p.  245. 

Poole  v  Gerrard,  6  Cal.  Rep.  p.  71. 

Sargent  v.  Wilson,  5  Cal.  Rep.  p.  504 ;  Revalk  v.  Kraemer,  8  Ibid.  p.  66. 

Guiod  v.  Gourdon  et  al.,  January  T.  1860. 

Harper  et  al.  v.  Forbes  et  al.,  January  T.  1860. 

Gee  v.  Moore,  October  T.  1859. 

Revalk  v.  Kraemer,  8  Cal.  Rep.  p.  66. 


SEPARATE  PROPERTY.  45 

rights  waived  by  the  husband  and  wife,  and  to  have  the  ex- 
ecution of  the  instrument  by  the  wife,  acknowledged  in  such 
a  manner  as  to  comply  with  the  requirements  of  the  law  in 
each  case.* 

SEPARATE  PROPERTY. 

§  75.  The  act  of  April  17, 1850;b  defining  the  rights  of 
husband  and  wife,  contains  the  following  provisions : 

"Sec.  1.  All  property, both  real  and  personal, of  the  wife, 
owned  by  her  before  marriage,  and  that  acquired  afterwards 
by  gift,  bequest,  devise,  or  descent,  shall  be  her  separate 
property  ;  and  all  property,  both  real  and  personal,  owned 
by  the  husband  before  marriage,  and  that  acquired  by  him 
afterwards,  by  gift,  bequest,  devise,  or  descent,  shall  be  his 
separate  property." 

"  Sec.  2.  All  property  acquired  after  the  marriage  by  either 
husband  or  wife,  except  such  as  may  be  acquired  by  gift,  be- 
quest, devise,  or  descent,  shall  be  common  property." 

But  the  marriage  contract,  which  shall  be  acknowledged 
and  recorded  to  impart  notice  of  its  contents,  may  contain 
different  stipulations. 

§  76.  The  separate  property  as  above  denned  has  been  set 
apart  for  the  wife  by  art.  XI,  §  14  of  the  Constitution  of  Cal- 
ifornia, and  in  pursuance  of  that  clause  the  act  also  directs 
that  an  inventory  of  such  separate  property  shall  be  made 
out  and  signed  by  the  wife,  acknowledged  or  proved  in  the 
manner  required  for  a  conveyance  of  land,  and  recorded  in 
the  county  where  the  parties  reside,  and  in  such  other  coun- 
ties in  which  real  estate,  included  in  the  inventory,  may  be 
situated.  All  property  belonging  to  her,  and  included  in  the 
inventory,  is  exempt  from  execution  for  the  debts  of  her  hus- 
band.6 

a  The  form  of  acknowledgment,  both  for  a  conveyance  of  the  homestead 
and  for  one  of  the  wife's  separate  property,  is  that  required  under  the  con- 
veyancing act  for  all  conveyances  by  married  women.  See  <$  54-57.  Pease 
v.  Barbiers,  10  Gal.  Rep.  p.  436.  That  for  the  homestead  must  be  taken 
before  the  officers  named  in  sec.  4  of  said  act,  quoted  in  §  53 ;  but  for  that  of 
separate  property,  the  officers  are  expressly  named  by  other  acts,  see 
M  57,  58. 

b  Wood's  Digest,  art.  2605,  et  seq. 

c  The  capacity  of  the  wife  being  created  by  the  constitution,  her  title  to 


46  MORTGAGES  IN  CALIFORNIA. 

By  sec.  6,  as  amended  in  1858,  it  has  been  provided  that 
no  sale  or  other  alienation  of  any  part  of  the  separate  prop- 
erty of  the  wife  can  be  made,  nor  any  lien  or  encumbrance 
created  thereon,  unless  by  an  instrument  in  Writing,  signed 
by  the  husband  and  wife.a 

§  77.   It  has  been  further  provided  by  act  of  Feb.  14, 1855:b 

"Sec.  1.  That  a  married  woman  of  legal  age  shall  have 
power  to  convey  and  transfer  lands  or  any  estate  or  interest 
therein,  vested  in  or  held  by  her  in  her  own  right,  as  fully 
and  perfectly  as  she  might  or  could  do  if  single  or  unmarried; 
provided,  the  husband  of  such  married  woman  be  not,  and  for 
one  year  next  preceding  the  execution  of  the  instrument  of 
conveyance  by  the  wife,  has  not  been  bonafide  residing  in  this 
State." 

Peculiar  instructions  are  given  for  the  acknowledgment  of 
the  wife's  signature  in  each  of  these  cases  ;  see  §§  57,  58. 


TAXES. 

§  78.  All  property  of  every  kind  and  nature  within  the 
State  of  California,  except  churches,  colleges,  hospitals,  etc., 
is  taxed  annually  in  proportion  to  its  value,  for  the  support 
of  the  State  government,  the  county,  and  the  city  or  town. 
The  revenue  laws  provide  how  property  shall  be  assessed  at 
its  full  cash  value.  The  general  revenue  law  was  passed 
April  29,  1857,°  but  by  a  supplementary  act  of  April  29, 
1859,  the  manner  of  assessing  and  collecting  the  taxes,  was 

her  separate  estate  depends  alone  upon  the  mode  of  its  acquisition,  and  vests 
in  her  before  the  inventory  can  be  filed.  Selover  v.  Amer.  Russ.  Com.  Comp., 
7  Cal.  Rep.  p.  266.  And  the  omission  to  record  will  not  alter  its  mode  of 
disposition,  or  subject  it  to  the  control  of  the  husband,  in  any  other  manner 
than  as  the  separate  property  of  the  wife. 

*  It  may  be  doubted  whether  that  portion  of  this  section,  which  requires 
the  signature  of  the  husband  to  make  a  valid  sale,  or  to  create  an  incurn- 
brance  upon  the  separate  property  of  the  wife,  can  be  sustained.  No  power 
is  given  her  by  law  over  the  will  of  her  husband,  and  to  make  his  consent 
necessary  to  the  sale  and  use  of  that  which  is  exclusively  hers,  would  seem 
inconsistent  with  the  capacity  conferred  upon  her  by  the  constitution  itself. 
The  constitutionality  of  some  other  restrictions,  by  the  same  act,  on  her 
rights  in  her  separate  estate,  seems  equally  doubtful.  Selover  v.  Amer.  Russ. 
Com.  Comp..  7  Cal.  Rep.  p.  266. 

b  Wood's  Digest,  art.  2630.  c  Ibid.  art.  3003,  et  seq. 


TAXES.  47 

to  a  certain  extent  changed,  as  affecting  the  city  and  county 
of  San  Francisco.  The  latter  act  provides  (sec.  9)  that 
every  tax  shall,  from  and  after  the  third  Monday  in  October 
of  each  year,  be  a  lien  on  all  the  real  estate  of  the  person 
delinquent,  and  on  all  real  estate  subsequently  acquired  by 
such  person,  until  the  tax  is  paid,  or  the  title  to  the  real 
estate  has  vested  in  a  purchaser  under  a  sale  for  taxes.  But 
by  the  general  law,  which  affects  in  this  respect  the  entire 
State,  except  the  city  and  county  of  San  Francisco,  every 
tax  (sec.  32)  is  made  a  judgment  against  the  person  and  a 
lien  agfainst  the  property  assessed,  dating  from  the  first  Mon- 
day in  March  in  each  year. 

§  79.  The  Board  of  Supervisors  in  each  county  sit  during 
some  time  as  a  Board  of  Equalization,  to  determine  all  com- 
plaints made  in  regard  to  the  assessed  value  of  any  property, 
and  may  correct  any  valuation,  either  by  adding  thereto  or 
deducting  therefrom,  but  the  Board  has  not  the  right  to  raise 
the  valuation  without  notice  to  the  owner .a  The  tax  col- 
lector is  then  authorized  to  demand  and  collect  the  taxes  due, 
and  property  on  which  the  taxes  remain  unpaid  at  the  expir- 
ation of  the  time  fixed  by  law,  is  advertised  for  sale  during 
three  weeks.  At  the  time  and  place  advertised,  the  tax 
collector  proceeds  to  sell  such  property,  or  any  part  thereof, 
to  the  party  who  will  take  the  least  portion  of  it  and  pay 
the  delinquent  taxes. 

§  80.  During  six  months  after  the  sale  the  property  is 
subject  to  redemption  on  payment  to  the  purchaser  of  the 
amount  of  the  purchase-money  and  fifty  per  cent,  thereon 
in  addition.  If  no  redemption  is  made  within  that  time,  the 
tax  collector  will  execute  to  the  purchaser  a  deed  conveying 
the  title  to  the  property  sold.  Under  the  general  law,  (sec. 
23)  the  deed  conveys  the  entire  title,  legal,  equitable  or  oth- 
erwise, of  the  delinquent,  but  under  the  supplementary  act 
(sec.  8)  the  absolute  title  is  conveyed,  free  and  clear  of  all  en- 
cumbrances, mortgages,  liens,  claims,  etc.  of  any  person  or 
corporation,  except  as  regards  the  right  and  title  of  the 
United  States,  the  State  of  California,  or  of  minor  children, 
who  may  redeem  within  one  year  after  coming  of  age.  Under 

a  Patten  v.  Green,  April  T.  1859. 


48  MORTGAGES  IN  CALIFORNIA. 

both  laws,  such  deed  is  prima  facie  evidence  of  title,a  and 
conclusive  proof  of  the  matter  by  it  set  forth,  tut  courts  of 
law  and  equity  may  examine  with  regard  to  such  deed,  into 
any  alleged  illegality  of  the  assessment  of  the  property,  of 
the  levy  of  the  taxes,  of  the  sale,  and  of  the  execution  of  the 
deed  itself. 

§  81.  The  property  being  subject  to  sale  for  non-payment 
of  taxes,  it  is  proper  that  the  mortgagee  should  be  author- 
ized, on  default  of  the  mortgagor,  to  pay  them  for  account  of 
the  mortgagor,  if  he  sees  fit,  and  that  his  advances,  with 
interest  thereon,  shall  be  a  lien  on  the  property  under  the 
mortgage.  But  where  they  remain  unpaid,  and  the  mortga- 
gor suffers  the  land  to  be  sold  for  taxes,  and  buys  it  in,  he 
does  not  thereby  defeat  the  lien  of  the  mortgage,  his  pur- 
chase being  only  a  mode  of  paying  the  taxes.b 

Under  the  statutory  provisions  regarding  the  title  con- 
veyed, mentioned  in  §  80,  owners  have  often  allowed  their 
real  property  to  be  sold  for  taxes,  in  order  to  cure  by  pur- 
chase, and  Tax- Collector's  conveyance  on  behalf  of  the  taxing 
power,  such  defects  as  might  exist  in  the  title,  where  that 
power  was  the  grantor  ;  and  under  the  supplementary  act, 
which  affects  the  city  and  county  of  San  Francisco  only,  to 
complete  the  title,  as  against  every  claimant  to  the  property. 

INSURANCE. 

§  82.  Policies  of  insurance  taken  for  the  better  security 
of  the  mortgagee,  are  generally  made  out  in  the  name  of  the 
owner  of  the  premises,  the  loss,  if  any,  being  therein  made 
payable  to  the  mortgagee  ;  or  if  not  so  made  payable,  then 
the  policy  is  by  the  owner  assigned  to  the  mortgagee  with 
the  written  assent  of  the  insurance  company.  Up  to  this 
time  no  general  fire  insurance  companies  have  been  formed 

*  This  shifts  the  burden  of  proof  from  the  party  who  claims  under  the 
tax-deed,  to  the  party  who  attacks  it,  and  the  latter  must  show  that  the 
requirements  of  the  law,  as  regards  the  assessment  of  the  tax,  levy,  etc., 
have  not,  or  not  sufficiently,  been  complied  with.  Ferris  v.  Coover,  10  Cal. 
Rep.  p.  589 ;  Lachman  et  al.  v  Clark,  October  T.  1859. 

b  Frye  v.  Bank,  etc.,  11  Illinois  Rep.  p.  367;  Ralston  v.  Hughes,  13  Ibid. 
p.  489. 


INSURANCE.  49 

in  California,  but  a  number  of  the  best  and  most  reliable 
companies  of  England  and  the  Eastern  States  have  agencies 
in  San  Francisco.  The  eastern  companies  send  out  blank 
policies  signed  by  their  officers,  and  to  be  filled  out  and  coun- 
tersigned by  their  agents.  Most  of  them  provide  mortga- 
gees with  a  covenant  against  the  acts  or  neglect  of  the  mort- 
gagor,* which  adds  much  to  the  value  of  insurance  as  an 
additional  means  of  security. 

•  This  covenant  is  either  inserted  in  the  policy,  or  is  contained  in  a  special 
agreement  in  the  following  terms  : 

"  In  consideration  of  one  dollar  received  to  its  full  satisfaction,  the  ..... 

Fire  Insurance  Compiny  of doth  hereby  agree  with of 

San  Francisco,  California,  that  all  Policies  of  Insurance  which  have  been,  or 

may  be,  issued  by  the  said Fire  Insurance  Company,  and  which, 

with  its  assent,  have  been  or  may  be  assigned,  or  losses  under  which  are 

made  payable  to  the  said as  mortgagee,  shall  not,  as  to  the  interest 

of  the  said  mortgagee  only  therein,  be  invalidated  by  any  act  or  neglect  of 
the  mortgagor  or  owner  of  the  property  insured,  nor  by  the  occupation  of  the 
premises  for  purposes  more  hazardous  than  are  permitted  by  the  policy. 

"  And  it  is  further  agreed,  between  the  parties  hereto,  that  the  mortgagee 
shall  notify  said  Company  of  any  change  of  ownership  or  increase  of  hazard 
which  shall  come  to  his  knowledge,  and  that  every  increase  of  hazard,  not 
permitted  by  the  policy  to  the  mortgagor  or  owner,  shall  be  paid  for  by  the 
said  mortgagee  on  reasonable  demand,  according  to  the  established  scale  of 
rates,  for  the  use  of  such  increased  hazard  during  the  current  year. 

"  And  it  is  further  agreed,  between  the  parties  hereto,  that,  whenever  the 

said Fire  Insurance  Company  shall  pay  to  the  said  mortgagee  any 

sura  for  loss  under  any  policy  assigned  as  above,  and  shall  claim  that,  as  to 

the  mortgagor  or  owner,  no  liability  therefor  existed,  the  said Fire 

Insurance  Company  shall  at  once  be  legally  subrogated  to  all  the  rights  of 
the  mortgagee  under  all  the  securities  held  as  collateral  to  the  mortgage  debt, 
to  the  extent  of  such  payment,  or,  at  its  option,  may  pay  to  the  mortgagee 
the  whole  principal  due,  or  to  grow  due,  on  the  mortgage,  with  interest,  and 
shall  thereupon  receive  a  full  assignment  and  transfer  of  the  mortgage,  and 
all  other  securities  held  as  collateral  to  the  mortgage  debt;  but  no  such 
subrogation  shall  impair  the  right  of  the  mortgagee  to  recover  the  full  amount 
of  his  claim." 


CHAPTER  IV. 

POSSESSION.  —  FIXTURES.  —  MECHANIC'S  LIEN.  —  WASTE. 


POSSESSION. 

§  83.  Possession  by  the  mortgagor  at  the  time  of  the  ex- 
ecution of  the  mortgage,  is  an  important  element  of  title,  as 
involving  the  present  enjoyment  and  profits,  and  avoiding 
the  expense  and  delay  of  its  recovery.  Besides,  possession* 
operates  as  notice,  or  evidence  of  notice,b  of  the  possessor's 
title,  whether  legal  or  equitable,  so  «,s  to  place  the  subse- 
quent purchaser  in  the  position  of  his  vendor  with  respect  to 
such  legal  or  equitable  title  of  the  possessor  ;  and  it  may  be 
proper  here  to  mention  that  where  a  party  has  an  equity,  by 
purchase  or  improvement  of  the  property,  coupled  with  pos- 
session under  the  bona  fide  belief  of  ownership,  whilst  the 
legal  owner  has  knowingly  suffered  such  purchase  or  im- 
provement to  be  made,0  then  all  who  purchase  the  legal  title 

a  Hutchinson  v.  Perley,  4  Gal.  Rep.  p.  33 ;  Winans  v.  Christy,  4  Ibid.  p.  70. 
But  it  must  be  actual,  bona  fide  occupation,  a  subjection  to  the  will  and  con- 
trol, as  contradistinguished  from  the  mere  assertion  of  title,  and  the  exercise 
of  casual  acts  of  ownership.  A  mere  entry  without  color  of  title,  accompa- 
nied by  a  survey  and  marking  of  boundaries,  is  not  sufficient.  Murphy  v« 
Wallingford,  6  Cal  Rep.  p.  648;  Bird  v.  Lisbros,  9  Ibid.  p.  1. 

b  In  how  far  possession,  by  one  having  an  unrecorded  deed,  has  been  con- 
sidered to  be  evidence  of  notice,  has  been  stated  in  ty  41. 

c  There  is  no  principle  better  established,  or  founded  on  more  solid  consid- 
erations of  equity  and  public  utility,  than  that  which  declares,  that  if  one 
man  knowingly,  though  he  does  it  passively  by  looking  on,  suffers  another  to 
purchase,  and  expend  money  on  land,  under  an  erroneous  opinion  of  his  title, 
without  making  known  his  claim,  he  shall  not  afterwards  be  permitted  to 
exercise  his  legal  right  against  such  person.  It  would  be  an  act  of  fraud  and 
injustice,  and  his  conscience  would  be  bound  by  it.  Wendell  v.  Van  Rensse- 
laer,  1  Johns.  Ch.  Rep.  p.  354.  The  rule  is :  if  one  is  intentionally  silent 
when  he  should  speak,  justice  will  compel  him  to  silence  when  he  would 
speak.  See  Buckingham  et  al.  v.  Smith  et  al.,  10  Ohio  Rep.  p.  298  ;  Bryan 
v.  Ramirez,  8  Cal.  Rep.  p.  461.  Fraud  of  the  owner,  in  silently  permitting 


FIXTURES.  51 

of  the  grantor,  out  of  possession,  must  take  notice  of  the 
equity.* 

FIXTURES. 

§  84.  A  mortgage  of  land  carries  with  it  all  buildings 
and  other  fixtures  which  are  or  may  be  attached  to  the 
freehold,6  even  though  not  named,  unless  excluded  expressly 
or  by  inference,  as  by  mentioning  those  in  only  a  part  of  the 
premises,0 

The  estate  remains  that  of  the  mortgagor,  with  all  the  in- 
cidents of  ownership,  until  after  foreclosure  and  sale,  by  the 
conveyance  a  new  owner  is  substituted/1 — but  in  gen- 
eral, the  possession  of  a  mortgagor,  or  one  claiming  under 
him,  is  not  regarded  as  adverse  to,  but  under  the  mortgagee. 
Any  buildings  or  other  improvements  placed  by  the  mortga- 
gor upon  the  land,  must  be  considered  as  improvements  made 
by  him  upon  his  own  estate,  with  a  view  to  the  redemption 
of  the  property,  and  of  which  he  has  the  full  benefit  in  the 
enhanced  value  of  the  equity  of  redemption.6  They  cannot 
be  removed  by  him  before  payment  of  the  debt.f  Even  fix- 
tures for  trade  cannot  be  removed  by  the  mortgagor,  though 
put  up  after  execution  of  the  mortgage,5  if  they  are  annexed 
to  the  freehold,  that  is  fastened  to  or  connected  with  it.  As 
between  mortgagee  and  mortgagor,  the  rule  in  relation  to 

improvements  to  be  made,  entitles  the  party  making  them  to  hold  the  im- 
provements. But  this  fraud  only  exists  at  the  very  most  where  the  owner 
knows  that  the  other  person  is  making  the  expenditures,  and  also  knows  that 
he  is  making  them  under  the  b&na  fide  reasonable  belief  that  he  is  the  owner 
of  the  property.  McGarity  v.  Byington,  January  T.  1859.  These  cases,  given 
to  illustrate  analogically  the  above  principle,  are  instances  of  estoppel  in  pais, 
depending  upon  the  fraud  of  the  owner,  irrespective  of  any  abstract  right  of 
the  possessor. 

•  4  Monroe's  Ky.  Rep.  p.  196;  5  Johns.  Ch.  Rep.  p.  33;  Bryan  v.  Ramirez, 
8  Cal.  Rep.  p.  461. 

Rose  v.  Munie,  4  Cal.  Rep.  p.  173. 

Hare  v.  Horton,  5  B.  $  Ad.  p.  715.    See  Longstaff  v.  Meagoe,  2  Ad.  $ 

p.  167. 

Guy  v.  Ide,  6  Cal  Rep.  p.  99. 

Per  Wills,  J.,  29  Maine,  p.  116;  Hunt  v.  Hunt,  14  Pick.  p.  385. 

Butler  v.  Page,  7  Met.  p.  40. 

Winslow  v.  Merchants'  Insurance  Co.,  4  Met.  p.  306. 


52  MORTGAGES  IN  CALIFORNIA. 

fixtures  obtains  with  the  most  rigor  in  favor  of  the  mort- 
gagee, and  against  the  right  to  disannex  from  the  premises, 
and  to  consider  as  a  personal  chattel,  anything  which  has 
been  affixed  thereto.a 

§  85.  So  if  land  mortgaged,  be  sold  under  a  decree  of  fore- 
closure, the  purchaser  will  be  entitled  to  the  crops  growing 
at  the  time  of  the  sale,  in  preference  to  a  person  claiming 
under  the  mortgagor,  and  whose  claim  originated  subse- 
quently to  the  mortgage.5  If  the  mortgagor  makes  prepara- 
tions for  a  crop,  he  does  it  with  a  full  knowledge  that  the 
land  with  the  crops  is  subject  to  be  sold,  if  the  decree  be 
obtained  before  he  severs  it.  Nor  does  he  loose  anything  by 
this  ;  for  the  crop  on  the  land  enhances  the  price.  If  by  this 
increase,  the  debt  is  overpaid,  he  gets  the  overplus  ;  if  not, 
still  the  value  of  his  labor  goes,  as  he  had  agreed  it  should 
go,  to  the  payment  of  the  debt.6 

MECHANIC'S    LIEN. 

§  86.  In  virtue  of  an  act  of  April  19,  1856,  amended 
March  1.8,  1857,d  and  April  22, 1858,  master  builders,  me- 
chanics, artisans,  lumber  merchants,  and  all  other  persons 
performing  labor  or  furnishing  materials  for,  or  employed  in 
the  construction  or  repair  of  any  building,  wharf,  bridge, 
ditch,  flume,  aqueduct,  or  other  superstructure,  have  a  lien  on 
such  buildings,  etc.,  for  the  work  and  labor  done,  or  mate- 
rial furnished  by  each  respectively.  The  act  must  be  strictly 
construed  in  all  questions  arising  under  it,  because  it  gives 
rights  in  derogation  of  the  common  law.6 

Sec.  4  provides  that  the  land,  or  so  much  as  may  be  neces- 
sary for  the  convenient  use  and  occupation  of  the  premises, 
shall  also  be  subject  to  the  lien,  but  it  states  also  that  nothing 


*  2  Kent's  Comm.  p.  346 ;  Day  v.  Perkins.  2  Sand.  Oh.  Rep.  p.  364  ;  Sands 
v.  Pfeiffer,  10  Col.  Rep.  p.  258.    For  a  review  of  the  question  of  fixtures,  see 
Merritt  et  al.  v.  Judd  et  al.,  July  T.  1859. 

b  Jones  v.  Thomas,  8  Blackf.  Rep.  p.  428 ;  Shepard  v.  Philbrick,  2  Denio, 
p.  174. 

c  Crews  v.  Pendleton,  1  Leigh,  pp.  297,  305. 
d  Wood's  Digest,  art.  2797-2808. 

*  Bottomly  v.  Grace  Church,  2  Cal.  Rep.  p.  90. 


MECHANIC'S  LIEN.  53 

therein  contained  shall  be  construed  as  impairing  any  valid 
encumbrance  upon  the  land,  duly  made  and  recorded  before 
the  work  was  commenced,  or  the  first  of  the  materials  were 
furnished/ 

The  same  right  of  lien  is  granted  for  grading  or  improv- 
ing lots  in  any  incorporated  city  or  town,  or  streets  adjoin- 
ing such  lots,  when  done  under  an  express  contract  in  writing, 
(sec.  12.) 

§  87.  In  order  to  render  the  lien  effectual,  a  notice  and 
account  of  the  claim  must  be  filed  in  the  County  Recorder's 
office,  together  with  a  correct  description  of  the  property,0 
within  sixty  days  after  the  completion  of  the  building  or 
other  structure.  The  lien  is  not  binding  for  a  longer  period 
than  six  months  after  filing  the  same,  unless  suit  be  brought0 
in  a  court  of  competent  jurisdiction  within  that  timed  to  en- 
force the  same,  or  if  a  credit  be  given,  then  within  six  months 
after  the  expiration  of  the  credit,  which  should  appear  from 
the  notice  filed,  but  no  lien  shall  be  continued  in  force  for  a 
longer  time  than  two  years  from  the  time  the  work  is  com- 
pleted or  the  materials  furnished,  by  any  agreement  to  give 
credit- 
Whenever  such  an  action  is  instituted,  the  court  notifies  by 
publication  all  persons  claiming  liens  on  the  premises  under 
this  act,  to  appear  on  a  day  specified,  when  their  liens  are 
determined.  Liens  under  the  act  and  not  then  presented, 
are  deemed  to  be  waived. 

§  88.  It  seems  unnecessary  for  the  purposes  of  these  pages 
to  review  the  act  at  length.  The  subject  is  important  and 

*  The  materials  must  not  only  have  been  used  in  the  construction  of  the 
building,  but  they  must  have  been,  by  the  express  terms  of  the  contract, 
furnished  for  the  particular  building  on  which  the  lien  is  claimed.  Houghton 
v.  Blake,  5  Cal.  Rep.  p.  240. 

b  If  not  correct,  it  will  not  impart  notice  to  third  parties  ;  a  notice  describ- 
ing property  on  a  certain  street,  and  between  other  streets,  is  insufficient. 
Montrose  v.  Conner,  8  Cal.  Rep.  p.  344. 

c  As  in  the  case  of  a  foreclosure  of  mortgage,  all  persons  interested  in  the 
estate,  at  the  time  the  suit  is  instituted,  should  be  made  parties,  or  their 
rights  will  not  be  affected.  Whitney  v.  Higgins,  10  Cal.  Rep.  p.  547. 

d  The  statute  requires  that  every  lien  on  the  same  property  shall  be  liti- 
gated and  enforced  in  the  same  action.  The  filing  of  the  intervention,  and 
becoming  a  party  to  the  suit  within  the  prescribed  period  of  six  months,  gives 
precisely  the  same  effect  to  the  position  of  the  intervene  r  as  if  he  had  com- 
menced an  original  action.  Mars  v.  McKay  et  al.,  October  T.  1859. 


54  MORTGAGES  IN  CALIFORNIA. 

renders  it  indispensable  when  about  making  an  investment, 
to  ascertain  satisfactorily,  that  there  is  not,  nor  recently  has 
been,  occasion  for  the  existence  of  the  liens  referred  to,  as 
they  attach  by  relation  from  the  date  of  the  commencement 
of  the  work,  and  all  persons  who  deal  with  the  property 
during  the  progress  of  the  work,  are  charged  with  notice  of 
the  claim  of  the  contractor.  After  he  has  entered,  however, 
upon  the  erection  of  the  building,  he  cannot  so  alter  his  con- 
tract, as  to  create  a  greater  or  different  lien  on  the  premises, 
whereby  a  claim  of  a  third  party  would  be  injured,  who  had 
loaned  money  on  the  property,  whilst  the  original  contract 
existed.31 

Where  the  money  is  borrowed  during  the  process  of  build- 
ing, the  mortgagee  generally  pays  only  after  expiration  of 
the  time  limited  for  filing  liens,  or  if  paying  before,  obtains 
additional  security  until  such  time,  or  he  undertakes  the 
application  of  the  money  advanced,  to  the  liquidation  of  the 
claims  of  mechanics  and  material  men  given,  as  they  become 
payable. 

The  mortgage  carrying  all  buildings  which  are,  or  may  be, 
attached  to  the  freehold,  a  mechanic's  lien,  like  any  other 
incumbrance  created  subsequent  to  the  record  of  the  mort- 
gage, is  subordinate  to  it. 

WASTE. 

§  89.  Although  a  mortgagor  in  possession  is  regarded  as 
the  owner  of  the  land,  and  as  such  entitled  to  the  tempor- 
ary rents  and  profits,  yet,  inasmuch  as  the  very  purpose  of 
the  mortgage  would  be  defeated  by  any  acts  affecting  the 
permanent  value  of  the  property,  the  law  will  in  some  form 
interpose,  either  to  prevent  the  commission  of  waste  by  the 
mortgagor,  by  an  injunction  from  a  court  of  equity,  espe- 
cially if  the  debt  is  thereby  endangered,  or  to  compensate 
the  mortgagee  for  the  value  thus  taken  from  the  land,  by  the 
mortgagor's  giving  additional  security,  or  otherwise.0 

a  Soule  &  Page  v.  Dawes,  7  Gal.  Rep.  p.  576 ;  Crowell  et  al.  v.  Gilmore  et 
al.,  April  T.  I860. 

b  1  Hilliard  on  the  Law  of  Mortgages,  pp.  206,  207,  2d  ed.,  quoting  Gray 
v.  Baldwin,  8  Blackf.  p  164,  and  other  authorities. 


WASTE.  55 

In  the  exercise  of  his  rights  the  mortgagor  is  limited  by  his 
pledge  to  the  mortgagee,  of  the  fixtures  and  improvements 
existing  on  the  land,  or  such  as  may  afterwards  be  placed 
thereon  ;  if  removed  they  may  be  followed  and  recovered  by 
the  mortgagee. 

From  the  commencement  of  the  action  the  statute  directly 
interferes,  for  the  purpose  of  preventing  injury  to  the  prop- 
erty. The  Practice  act  contains  the  following  on  this  point : 

§  90.  During  the  foreclosure  :  "  Sec.  261.a  The  court  may, 
by  injunction,  on  good  cause  shown,  restrain  the  party  in 
possession  from  doing  any  act  to  the  injury  of  real  property 
during  the  foreclosure  of  a  mortgage  thereon  ;  or  after  a  sale 
on  execution,  before  a  conveyance."' 

For  the  subject  of  waste  on  appeal  from  a  judgment,  see 
hereinafter  §  116,  and  for  waste  during  the  time  allowed  for 
redemption,  §  125. 

§  91.  Recovery  of  damages  :  "Sec.  262.c  When  real  prop- 
erty shall  have  been  sold  on  execution,  the  purchaser  thereof, 
or  any  person  who  may  have  succeeded  to  his  interest,  may, 
after  his  estate  becomes  absolute,  recover  damages  for  injury 
to  the  property  by  the  tenant  in  possession,  after  sale,  and  be- 
fore possession  is  delivered  under  the  conveyance." 

'  Wood's  Digest,  art.  995. 

b  The  remedy  afforded  by  this  section  is  only  preventive  ;  it  is  not  exclu- 
sive of  any  other  remedy.      Sands  et  al.  v.  Pfeiffer  et  al.,  10  Cal.  Rep.  p.  258. 
c  Wood's  Digest,  art.  996. 


CHAPTER    Y. 

ASSIGNMENT.— RELEASE. 


ASSIGNMENT. 

§  92.  By  the  transfer  of  a  claim  secured  by  mortgage,  the 
mortgage  as  well  as  the  debt  is  -in  most  cases  expressly  as- 
signed, and  the  assignee  is  thereby  put  in  the  place  of  the 
mortgagee,  to  all  intents  and  purposes,  and  is  subrogated  to 
all  his  rights.* 

This  is  the  usual  and  almost  invariable  mode,  but  the  mort- 
gage being  but  an  incident  to  the  debt,  the  indorsement  of  a 
negotiable  promissory  note,  secured  by  mortgage,  carries 
with  it  the  security,  without  a  formal  assignment  of  the 
mortgage.5 

§  93.  For  the  same  reason  the  mortgage  cannot  pass 
without  a  transfer  of  the  debt.0  An  assignment  of  the  in- 
terest of  the  mortgagee  in  the  land,  without  an  assignment  of 
the  debt,  is  considered  in  law  as  a  nullity .d  Mr.  Chief  Jus- 
tice Kent  says  :  "  It  cannot  and  ought  not  to  be  detached 
from  its  principal.  The  mortgage  interest,  as  distinct  from 
the  debt,  is  not  a  fit  subject  of  assignment.  It  has  no  de- 

a  Johnson  v.  Dopkins,  3  Cal.  Rep,  p.  195. 

b  Ord  v.  McKee,  5  Cal.  Rep.  p.  515;  Phelan  v.  Olney,  6  Cal  Rep.  p.  478.  Where 
after  transfer  of  the  mortgage  by  a  mere  indorsement  of  the  note,  the  mort- 
gage should  be  discharged,  great  inconvenience  might  arise  in  cases  where 
the  chain  of  title  has  to  be  established  or  made  clear.  The  release  might  ap- 
pear on  record,  but  the  records  would  show  no  authority  in  the  indorsee  to 
grant  a  discharge. 

c  Peters  v.  Jamestown  Bridge  'Co.,  5  Cal.  Rep.  p.  334. 

d  Jackson  v.  Bronson,  19  John.  325.  Where  a  mortgagee  makes  a  deed  of 
the  mortgaged  property,  or  his  interest  therein,  it  conveys  no  right  thereto, 
neither  does  it  operate  as  an  assignment  of  the  mortgage.  A  subsequent 
assignee  or  purchaser  of  a  mortgage,  cannot  be  charged  with  constructive  no- 
tice of  any  act  of  the  mortgagee  or  his  representative  subsequent  to  the  mort- 
gage, except  its  assignment  or  satisfaction  duly  entered  of  record.  Peters  v. 
Jamestown  Bridge  Co,,  5  Cal.  Rep.  p.  334. 


ASSIGNMENT.  57 

terminate  value.  If  it  should  be  assigned,  the  assignee  must 
hold  the  interest  at  the  will  and  disposal  of  the  creditor  who 
holds  the  note  or  bond."  *  The  assignment  of  a  mortgage, 
without  the  debt,  creates  at  most  a  naked  trust?  and  in  this 
view  it  so  far  divests  the  title  of  the  mortgagee,  that  he  has 
no  power  to  discharge  the  mortgage  or  any  part  of  it.0 

§  94.  A  married  woman  cannot  make  an  assignment  of  a 
mortgage  made  to  her,  except  in  the  mode  prescribed  for  the 
alienation  of  her  separate  estate.  If  it  be  common  property 
of  husband  and  wife  under  the  statute,  the  husband  can  as- 
sign it  in  his  own  name,  he  having  the  sole  control  of  the 
common  property.*1 

§  95.  The  question  how  far  the  assignee  of  a  mortgage  is 
bound  by  the  actual  state  of  the  account  between  the  mort- 
gagee and  mortgagor  at  the  time  of  the  assignment,  has  fre- 
quently been  a  subject  of  discussion. 

The  general  rule  is,  that  an  assignee  takes  the  mortgage 
subject  to  all  equities  existing  between  the  original  parties, 
and  between  the  debtor  and  a  prior  assignee,  that  is,  he  can- 
not claim  what  appears  to  be  due  upon  the  face  of  the  mort- 
gage, but  only  what  is  really  due,  after  deducting  all  pay- 
ments and  offsets.  It  is  held,  that  a  payment  made  to  the 
mortgagee  at  any  time  before  notice  of  the  assignment,  is 
good  against  the  assignee.6  If  it  be  stated  in  the  assignment 
that  a  certain  sum  is  due  for  principal  and  interest,  although 
the  mortgagee  is  bound  by  the  statement,  the  mortgagor  is 
not,  unless  a  party  to  the  assignment/ 

But  if  the  mortgage  is  given  to  secure  a  negotiable  note, 
and  both  are  assigned  before  maturity  to  a  bona  tide  indorsee, 
he  takes  clear  of  any  equities  between  the  original  parties.g 

*  Jackson  v  Willard,  4  Johns,  p.  43  ;  Wilson  v.  Troup,  2  Cow.  p.  195 ;  McGan 
v.  Marshall,  7  Humph,  p.  121 ;  Garroch  v.  Sherman,  2  Halst.  Ch.  p.  219;  Edward 
v.  Varick.  5  Denio,  p.  664 ;  Bailey  v.  Gould,  Walk.  Ch.  p.  478. 

b  2  Story's  Comm.  on  Eq.  Jurisp.  $  1023,  note.  See  4  Kent's  Comm.  p.  194, 
4th  ed. 

e  McCormick  v.  Digby,  8  Blackf.  p.  99. 
d  Tryon  v.  Sutton  et  al.,  April  T.  1859. 

•  Hnbbard  v.  Turner,  2  McL.  p.  519. 

f  James  v.  Morey,  2  Cow.  p.  247 ;  Wolcott  v.  Sullivan,  1  Edw.  p.  402:  Nor- 
rich  v.  Marshall,  5  Mad.  p.  481  •,  Carew  v.  Johnston.  2  Sch.  and  Lef.  p.  296. 

e  Beeves  v  Scully,  Walk.  Ch.  p.  248.  See  Payne  v.  Uensley,  8  Cal  Rep.  p. 
260 ;  Bobinson  v.  Smith  et  al.,  July  T.  1859. 


58  MORTGAGES  IN  CALIFORNIA. 

§  96.  Excepting  the  last  mentioned  case,  it  is  evident  that 
a  person  taking  an  assignment  of  mortgage,  should  exercise 
great  caution,  by  application  to  the  mortgagor  or  otherwise, 
in  ascertaining  the  precise  amount  due,  and  in  such  manner 
as  to  be  susceptible  of  proof ;  and  he  is  further,  in  his  own 
interest,  obliged  to  give  notice  of  the  assignment  to  the 
mortgagor.  For,  although  the  recording  or  registration  of 
the  assignment  is  legal  notice  to  those  claiming  under  a  sub- 
sequent transfer  from  the  mortgagee  or  his  representatives, 
it  has  been  held  that  it  is  not  equivalent  to  actual  notice  as 
regards  the  mortgagor,  and  that  the  latter  may-  make  valid 
payment  of  the  mortgage  debt  to  the  mortgagee,  such  regis- 
tration notwithstanding,  unless  he  have  actual  noticed 

But  where  the  mortgage  secures  the  payment  of  a  nego- 
tiable note  given  for  the  debt,  and  the  mortgagee  is  unable 
to  produce  such  note,  this  circumstance  should  put  the  mort- 
gagor on  his  guard,  and  want  of  inquiry  on  his  part  may  in- 
validate his  payment  to  such  mortgagee. 

§  97.  Both  objects  can  be  attained  by  making  the  mort- 
gagor a  party  to  the  assignment  of  the  mortgage,  thus,  of 
course,  precluding  him  and  his  heirs  or  assigns  from  a  denial 
that  the  face  of  the  mortgage  exhibits  the  true  state  of  the 
mortgagee's  claim,  and  likewise  preventing  further  payments 
from  him  to  the  mortgagee.  This  practice  is  not  general,  but 
has  been  strongly  recommended.  Lord  Loughborough  re- 
marks upon  this  subject :  "  It  was  supposed  that  in  practice 
there  is  no  occasion  to  make  the  mortgagor  a  party,  and  ia 
some  cases  it  may  not  be  possible  to  make  him  a  party  to  the 
assignment ;  and  to  hold  that  the  assignee  of  a  mortgage  is 
bound  to  settle  the  accounts  of  the  person  from  whom  he  takes 
the  assignment,  would  tend  to  embarrass  transfers  of  mort- 
gages." "Persons  most  conversant  in  conveyancing,  hold 
it  extremely  unfit  and  a  very  indifferent  security,  to  take 
an  assignment  of  a  mortgage  without  the  privity  of  the  mort- 
gagor as  to  the  sum  really  due.  No  conveyancer  of  estab- 
lished practice  would  recommend  it  as  a  good  title,  to  take 


»  Williams  v.  Sorrell,  4  Ves.  Jun.  p.  389 ;  Matthews  v.  Wallwyn,  4  Ves.  Jun. 
p.  118;  Coote  on  Mortgages,  p.  441 5  New  York  Life,  etc.  v.  Smith,  2  Barb. 
Ch.  p.  82 ;  2  Cow.  p.  246. 


RELEASE.  59 

an  assignment  of  a  mortgage  without  making  the  mortgagor 
a  party,  and  being  satisfied  that  the  money  was  really  due."* 


RELEASE. 

§  98.  A  mortgage  being  given  as  security  for  a  debt,  the 
general  rule  is  that  nothing  but  actual  payment  of  the  debt, 
or  an  express  release,  will  operate  as  a  discharge  of  the 
mortgage.  The  lien  lasts  as  long  as  the  debt,b  but  no 
longer.6 

But  a  mortgage  debt  may  be  extinguished,  as  a  personal 
claim  against  the  mortgagor,  and  the  land  still  remain  liable 
for  the  amount  of  such  debt.d  The  mortgagee  in  such  case  in 
fact  releases  the  mortgagor  of  all  liability  for  any  part  of  the 
debt,  which  might  remain  unpaid  after  sale  of  the  land. 

§  99.  On  the  other  hand  the  mortgagee  may  part  with  his 
security,  and  release  the  property  mortgaged,  or  a  portion  of 
it,  without  in  any  manner  affecting  the  liability  of  the  debtor 
on  the  note.  The  debt  has  an,  independent  existence,  and 
remains  with  all  its  original  validity,  notwithstanding  such 
release, e  for  the  entering  of  a  discharge  of  the  land  from  the 
mortgage  by  the  mortgagee,  does  not  of  itself,  (that  is  with- 
out mentioning  payment  or  satisfaction,)  discharge  the  debt, 
but  merely  the  security/ 

•  Watthews  v.  Wallwyn,  4  Ves.  p.  128  ;  see  1  PoweU  on  Mortgages,  p.  152. 

b  Morse  v.  Clayton,  13  Sm.  and  M.  p.  373 ;  1  Freem.  Ch.  p.  307  ;  Burton  v. 
Cressly,  1  Chev.  2d  part.  Thus,  in  general,  a  mortgage  made  to  secure  a 
promissory  note  will  remain  security  for  any  new  note  given  in  payment  of  the 
former  one,  this  transaction  not  being  looked  upon  as  a  payment  of  the  debt. 
Burdett  v.  Clay,  8  B.  Monr.  p.  287 ;  Bank,  et  al.  v.  Finch,  3  Barb.  Ch.  p.  29-J ; 
Heard  v.  Evans,  Freem.  Ch.  p.  79 ;  Spring  v.  Hill  &  Carr.  6  Col.  Rep.  p.  17. 
Unless  there  is  an  intention  to  the  contrary.  Haddock  v.  Bullfinch,  31  Maine. 
p.  246.  Taking  a  second  mortgage  is  no  waiver  of  a  prior  one  made  for  the  same 
debt;  and  taking  personal  security  for  a  mortgage  debt  is  no  waiver  of  the 
mortgage.  Burdett  v.  Clay,  8  Monr.  p.  287.  Where  land  mortgage  1  is  taken 
for  public  uses,  the  damages  awarded  become  a  substitute  for  the  land,  and 
subject  to  the  lien  thereof.  Astor  v.  Miller,  2  Paige,  p.  68. 

«  Where  the  mortgage  debt  is  paid,  the  m  >rtgage  cannot  be  kept  alive  by  a 
parol  agreement,  as  security  for  another  debt.  Mead  v.  York,  2  Seld.  p.  449. 

d  Tripp  v.  Vincent.  3  Barb.  Ch.  p.  614. 

6  Hatch  v.  White,  2  Gallis  p.  152. 

f  Sherwood  v.  Dunbar,  6  Col.  Rep.  p.  53. 


60  MORTGAGES  IN  CALIFORNIA. 

But  if  a  portion  be  released,  it  will  be  well  to  ascertain  by  the 
records  whether  there  are  any  subsequent  purchasers  of  parts 
of  the  premises  mortgaged,  or  whether  the  interests  of  holders 
of  subsequent  liens,  on  parts  of  the  mortgaged  property,  may  be 
prejudiced  by  so  doing.  The  record  gives  subsequent  incum- 
brancers  only  notice  of  the  mortgage,  as  an  undivided  lien 
upon  all  the  property  mortgaged  to  secure  that  particular  debt. 
And  if,  for  instance,  a  second  mortgage  or  other  lien  exists  on 
some  of  the  land,  the  holder  thereof  has  the  right  to  require 
that  the  debt  secured  by  the  first  mortgage,  be  on  foreclosure 
in  the  first  place  satisfied  out  of  such  parts  of  the  property  as 
are  not  subject  to  his  lien.  But  his  chances  for  obtaining 
payment  may  be  materially  diminished  by  a  previous  release 
of  some  of  them.  A  sense  of  justice  will  prompt  an  inquiry 
of  this  sort,  though  there  is  no  authority  which  enjoins  it, 
as  the  risk  of  such  partial  release  being  made,  is  deemed 
inherent  to  the  nature  of  such  subsequent  lien. 

Where,  however,  the  mortgagee  with  notice  of  the  rights  of 
subsequent  purchasers  or  mortgagees,  releases  a  part  of  the 
premises  primarily  liable  for  the  payment  of  the  debt  secured 
by  the  mortgage,  it  has  been  held  that  he  cannot  enforce  his 
lien  against  the  residue,  without  deducting  the  value  of  the 
part  released.*  But  the  mere  recording  of  a  subsequent  deed 
or  mortgage  is,  of  itself,  not  notice  to  the  prior  mortgagee.13 

§  100.  The  act  concerning  conveyances,  before  referred  to, 
gives  the  following  instructions  about  the  mode  of  releasing 
mortgages : c 

"  Sec.  37.  Any  mortgage  that  has  been  or  may  hereafter  be 
recorded,  may  be  discharged  by  an  entry  in  the  margin  of 
the  record  thereof,  signed  by  the  mortgagee  or  his  personal 
representative  or  assignee,  acknowledging  the  satisfaction  of 
the  mortgage,  in  the  presence  of  the  recorder  or  his  deputy, 
who  shall  subscribe  the  same  as  a  witness,  and  such  entry 
shall  have  the  same  effect  as  a  deed  of  release  duly  acknowl- 
edged and  recorded.*1 


*  Stuyvesant  v.  Hall,  2  Barb.  Ch.  p.  151. 

b  Stuyvesant  v.  Hall,  2  Barb.  Ch.  p.  151;    King  v.  McVicker,  3  Sandf. 
Ch.  p.  192. 

•  Wood's  Digest,  art.  374-376. 

d  An  objection  to  a  discharge  by  a  mere  entry  upon  the  margin  of  the  record 


RELEASE.  61 

§  101.  "  Sec.  38.  Any  mortgage  shall  also  be  discharged 
upon  the  record  thereof,  by  the  recorder  in  whose  custody  it 
shall  be,  whenever  there  shall  be  presented  to  him  a  certificate  a 
executed  by  the  mortgagee,  his  personal  representative  or 
assignee,  acknowledged,  or  proved  and  certified  as  hereinbe- 
fore prescribed  to  entitle  conveyances  to  be  recorded,  speci- 
fying that  such  mortgage  has  been  paid  or  otherwise  satisfied 
or  discharged." 

§  102.  "Sec.  39.  Every  such  certificate,  and  the  proof  or 
acknowledgment  thereof,  shall  be  recorded  at  full  length, 
and  a  reference  shall  be  made  to  the  book  containing  such 
record,  in  the  minutes  of  the  discharge  of  such  mortgage, 
made  by  the  recorder  upon  the  record  thereof." 

Is,  that  there  is  nothing  in  the  hands  of  the  parties  in  interest  to  show  the 
important  fact ;  for  every  other  transaction  concerning  real  estate  the  original 
document  remains  with  them. 

a  There  are  many  instances  where  a  mortgage  has  been  discharged  by  a 
brief  certificate  indorsed  on  the  mortgage  deed,  that  the  "  within  "  or  "  pre- 
ceding" mortgage,  (or  similar  terms,)  has  been  satisfied,  and  these  releases 
have  been  recorded  in  the  appropriate  register.  This  record  however  is  con- 
sidered insufficient,  unless  the  entire  mortgage  deed  be  recorded,  or  re- 
recorded, as  the  case  may  be,  together  with  such  release.  Assignments  of 
mortgages  have  often  been  made  and  recorded  in  a  similar  manner.  This 
insufficient  mode  of  recording  has  led  to  the  entire  rejection  of  titles,  by 
intended  purchasers  or  mortgagees,  where  neither  the  indorsed  mortgage 
deed,  nor  a  new  assignment  or  release,  could  be  had. 


CHAPTER  VI. 


EQUITY    OF    REDEMPTION.  —  SETTLEMENT    ON    DEATH    OF 
MORTGAGOR.  —  FORECLOSURE.—  SALE.—  REDEMPTION. 


EQUITY    OF    KEDEMPTION. 

§  103.  The  execution  and  delivery  of  the  mortgage  deed 
at  common  law,  transfer  the  legal  estate  and  vests  it  in  the  mort-' 
gagee,  but  by  the  terms  of  the  instrument  itself,  there  is  re- 
maining to  the  mortgagor  the  right  to  recover  the  entire 
estate  on  payment  of  the  debt  by  a  certain  day.  Under  the 
common  law,  if  such  payment  was  not  made  at  the  time  ap- 
pointed, the  condiiional  title  of  the  mortgagee  changed  by 
that  fact  into  an  absolute  title.  As  the  object  of  a  mortgage 
is  to  furnish  security  only,  and  not  a  sale  of  property,  it  was 
considered  unjust  in  an  equitable  view  of  the  transaction, 
that  the  mortgagor  should  lose  his  estate  by  reason  of  non- 
payment at  the  precise  time  specified,  a  default  for  which 
many  and  various  causes  might  exist. 

Therefore  courts  of  equity  interposed,  and  decreed  that 
the  debtor  or  his  representatives,  could  redeem  his  estate 
also  after  default,  provided  he  did  so  within  a  reasonable 
time,  not  exceeding  twenty  years.a  This  right  which  did  not 
exist  at  law,  and  is  purely  a  creature  of  courts  of  equity,  is 
styled  the  debtor's  equity  of  redemption. 

The  mortgagee  on  the  other  hand  is  under  the  common 
law,  allowed  to  come  into  court,  and  require  the  debtor  to 
perform  his  contract,  or,  on  his  then  remaining  in  default, 
have  his  equity  of  redemption  barred  and  foreclosed  forever, 
the  mortgagee  thereby  becoming  absolute  owner  of  the  prem- 
ises. This  is  the  recognized  mode  in  England. 

a  4  Kent's  Comm.  pp.  187, 188. 


EQUITY  OF  REDEMPTION.  63 

§  104.  In  this  State,  as  in  most  of  the  United  States, 
mortgages  stand  on  a  different  footing,  involving  a  different 
mode  of  foreclosure,  and  the  debtor  not  only  continues  to  en- 
joy his  equitable  right  of  redemption  as  before,  but  remains 
the  legal  owner.  Whether  a  court  of  equity  would  allow  so 
long  a  term  as  twenty  years  in  California,  where  the  statu- 
tory limitations  allow  proportionably  shorter  terms  than  in 
many  other  countries,  may,  perhaps,  be  considered  doubtful ; 
the  question  has  not  yet  presented  itself  before  the  courts. 

§  105.  No  person  can  come  into  a  court  of  equity  to  re- 
deem property  from  the  lien  of  a  mortgage,  but  the  mortga- 
gor, or  whoever  may  be  entitled  to  his  legal  estate,  or  claims 
a  subsisting  interest  or  lien  under  him.a 

It  has  often  been  stated  that  a  decree  under  foreclosure 
terminates  this  equity  of  redemption,  as  regards  every  per- 
son who  has  been  made  a  party  defendant.  After  having 
had  his  day  in  court,  and  an  opportunity  of  setting  up  any 
equities  he  possessed,  his  equitable  right  is  said  to  be  barred 
by  the  decree.b  The  better  opinion,  however,  seems  to  be  that 
his  right  is  not  barred  by  the  decree,  but  by  a  sale  under  it. 

§  106.  As  will  be  seen  from  the  foregoing,  the  equity  of 
redemption  is  the  real  and  beneficial  estate  in  the  land  which 
may  be  sold  and  conveyed  by  the  mortgagor,  in  any  of  the 
ordinary  modes  of  conveyance.0  Hence  a  second  mortgage 
will  not  in  any  manner  interfere  with  the  first  one,  for  it  will 
only  cover  the  mortgagor's  equity  of  redemption  under  the 
previous  mortgage. 

SETTLEMENT    ON    DEATH    OF    MORTGAGOR. 

§  107.  The  statute  provides  a  way  of  settling  mortgages 
in  case  of  death  of  the  mortgagor.  By  the  act  of  May  1st, 
1851, d  to  regulate  the  settlement  of  the  estates  of  deceased 
persons,  the  manner  is  pointed  out  in  which  all  claims  against 


•  Grant  v  Duane,  9  Johns,  611. 

b  Whitney  v.  Higgins  10  Cal  Rep.  554;  Montgomery  v.  Tutt,  11,  Col.  Rep. 
p.  307. 

«  McMillan  v.  Richards,  9  Cal.  Rep.  p.  365. 
d   Wood's  Digest,  art.  2222  et  seq. 


64  MORTGAGES  IN  CALIFORNIA. 

them  shall  be  presented  to  the  executor  or  administrator, a 
and  if  allowed  by  him,  to  the  judge  of  the  probate  court, 
when  if  allowed  it  shall  be  ranked  among  the  acknowledged 
debts  of  the  estate,  and  be  paid.  (Sec.  128—133.)  Also, 
how  suit  shall  be  brought  for  a  rejected  claim,  and  that  no 
action  shall  be  brought  on  any  claim  unless  the  same  shall  first 
have  been  presented,  which  need  not  be  done  until  due,  in- 
cluding claims  on  which  an  action  was  pending,  or  a  judg- 
ment had  been  recovered  against  the  deceased,  at  the  time  of 
his  death.  (Sec.  134—141.) 

No  sale  by  an  executor  or  administrator,b  of  any  property 
of  an  estate  shall  be  valid,  if  not  made  under  order  of  the 
probate  court  (sec.  148,)  unless  the  deceased  has  by  will  made 
provision  for  the  sale.  (Sec.  178.) 

When  the  land  is  subject  to  any  mortgage  or  lien,  the  pro- 
ceeds of  the  sale  of  that  property  shall  be  applied  after  pay- 
ng  the  necessary  expenses  of  the  sale,  in  the  first  place  to 
the  payment  of  such  mortgage  or  lien.  Where  there  is  a 
deficiency  remaining,  after  the  application  of  the  proceeds 
of  mortgaged  premises  to  the  payment  of  the  amount  due, 
the  claim  for  such  deficiency  must  be  presented  to  the  execu- 
tor or  administrator,  (sec.  141) c  and  will  rank  as  a  judgment 
amongst  the  claims  against  the  estate.  (See  sec.  239.) 

§  108.  Mortgages  may  be  presented  and  settled  in  this 
manner  under  the  act  referred  to.  It  has  even  been  held  by 
the  Supreme  Court  of  this  State,d  that  after  the  death  of  the 
mortgagor,  no  action  could  be  brought  upon  mortgages  un- 
less the  claim  had  been  presented  to  the  executor  or  admin- 
istrator, in  accordance  with  the  above  act,  and  had  been  by 

a  The  Probate  Court  issues  letters  of  administration.  Where  there  is  no 
next  of  kin  entitled  to  share  in  the  distribution  of  the  estate,  such  letters  are 
granted  to  the  public  administrator,  an  officer  under  bonds,  elected  every  two 
years,  who  continues  the  administration  even  after  the  expiration  of  his  term 
of  office,  until  his  authority  is  directly  set  aside,  or  indirectly  revoked  by 
another  appointment,  in  such  estate.  Rogers,  Public  Admin,  v.  Hoberlin,  11 
Cal  Rep.  p.  120. 

b  See  Cowell  et  al.,  v.  Buckelew  and  wife,  January  T.  1860.  The  adminis- 
trator's deed  conveys  to  the  purchaser  the  title  of  the  deceased,  such  as  it  is. 
In  these  sales,  caveat  emptor  is  the  rule.  Halleck  v.  Guy,  9  Cal.  Rep.  181. 

c  Cowell  et  al.,  v.  Buckelew  and  Wife,  January  T.,  1860. 

d  Falkner  v.  Folsom's  Executors,  6  Cal.  Rep.  p.  412;  Ellissen  v.  Halleck, 
6  Ibid.  p.  386. 


SETTLEMENT  ON  DEATH  OF   MORTGAGOR.  65 

him  rejected.  But  where  the  mortgagee,  without  previous 
presentation  of  the  claim,  served  the  administrator  with 
process,  and  the  latter  made  default,  the  decree  for  sale  and 
judgment  were  sustained.*  And  where  the  district  court 
had  gained  jurisdiction  by  personal  service  on  the  defendant, 
its  right  was  acknowledged  to  give  full  relief  even  after  his 
death,  and  for  this  purpose  to  decree  and  execute  a  sale  of 
the  mortgaged  premises.1* 

The  district  courts,  however,  are  by  the  constitution 
clothed  with  original  jurisdiction,  in  law  and  equity,  in  all 
civil  cases  where  the  amount  in  dispute  exceeds  two  hundred 
dollars,  exclusive  of  interest,0  and  it  has  been  held  that  in 
an  equity  cause,  the  district  court  is  possessed  of  all  the 
powers  of  a  court  of  chancery .d  Hence,  in  the  opinion  of 
many,  the  district  courts  must  be  deemed  to  have  likewise 
by  virtue  of  their  equity  powers,  full  jurisdiction  of  the 
estates  of  minors  and  deceased  persons,  including  the  settle- 
ment of  mortgages  and  the  sale  of  property. 

§  109.  The  statute  provides  that  if  an  execution  shall 
have  been  actually  levied  upon  any  property  of  the  deceased, 
before  his  death,  the  same  may  be  sold  for  the  satisfaction 
thereof,  and  the  officer  making  the  sale  shall  account  to  the 
executor  or  administrator  for  any  surplus  in  his  hands. 
(Sec.  141.) 

It  has  also  been  decided  that  when  the  defendant  dies  be- 
fore the  lien  of  a  judgment  on  his  real  estate  expires,  the 
property  being  in  the  custody  of  the  law,  a  sale  upon  an  ex- 
ecution is  valid.6  And  execution  was  allowed  to  issue  when 
the  mortgagor  died  after  decree  of  foreclosure,  if  there  was 
no  administration  upon  the  estate  ; *  and  likewise  where  the 
estate  was  in  the  hands  of  the  executrix,  the  court  stating 
"  the  decree  binds  the  specific  premises  mortgaged,  and  the 


•  Hentsch  v.  Porter,  Admin.,  10  Col.  Rep.  p.  555. 
b  Belloc  v.  Rogers,  9  Gal.  Rep.  p.  123. 

c  Constitution  of  California,  art.  VI.  sec.  6. 

d  Clark  v.  Perry,  5  Cal.  Rep.  p.  60;  Sandford  v.  Head  et  al.,  5  Ibid.  p.  297. 
See  Wilson  v.  Roach,  4  Ibid.  p.  3G2.  This  doctrine  is  reviewed  at  some  length 
in  Deck  et  al.  v.  Gerke,  Admin.,  12  Ibid.  p.  433. 

•  Isaacs  v,  Swift,  10  Cal.  Rep.  p.  71. 
f  Nagle  v.  Macy,  9  Cal  Rep.  p.  426. 

5 


66  MORTGAGES  IN  CALIFORNIA. 

property  passed  into  the  hands  of  the  executrix  subject  to  its 
lien  ;  she  can  take  only  what  remains  after  the  lien  has  been 
satisfied."  a 

FORECLOSURE. 

§  110.  In  the  event  of  default  in  the  payment  of  the  obli- 
gation, the  mortgagee  is  entitled  to  bring  an  action  to  fore- 
close the  mortgage.  If  he  should  delay  this  beyond  four 
years  after  maturity  of  the  debt,  his  right  to  a  general  (per- 
sonal) judgment  will  be  gone.  This  point,  and  the  question 
whether  the  statute  of  limitations  affects  the  mortgage  itself, 
has  been  discussed  before  in  §  67. 

As  the  mortgagor  remains  owner  of  the  property  mort- 
gaged, only  limited  in  the  exercise  of  the  rights  of  owner- 
ship by  his  obligation  towards  the  mortgagee  not  to  impair 
the  permanent  value  of  the  premises,  it  follows  that,  under 
the  general  tenor  of  mortgage  deeds,  the  same  reason  does 
not  exist  as  by  the  English  rule,  for  appointing  a  receiver  to 
collect  the  rents  and  profits  pending  the  litigation  on  fore- 
closure^ The  better  opinion,  however,  is  that  the  rents  and 
profits  after  default,  may  be  expressly  hypothecated,  so  as  to 
warrant  the  appointment  by  the  court  of  a  receiver  upon 
default. 

§  111.  A  foreclosure  suit  is  peculiarly  an  equity  proceed- 
ing, and  results  in  a  legal  ascertainment  of  the  amount  due, 
and  in  the  rendition  of  a  decree,  directing  the  sale  of  the 
premises  for  its  satisfaction,  and  the  appropriation  of  the 
surplus  proceeds,  if  any,  to  the  payment  of  subsequent  in- 
cumbrances,  and  then  to  the  use  of  the  owner  of  the  prem- 
ises.0 In  case  of  deficiency,  an  execution  to  pay  the  same 
may  be  issued  against  other  property  of  the  debtor. 

Section  18  d  of  the  act  to  regulate  proceedings  in  civil  cases, 
passed  April  29,  1851,  commonly  called  the  practice  act,  pro- 
vides that  this  or  any  other  action  concerning  real  estate, 
shall  be  tried  in  the  county  in  which  the  subject  of  the  action, 


•  Cowell  et  al.  v.  Buckelew  and  Wife,  January  T.  1860. 

b  Guy  v.  Ide,  6  Col.  Rep.  p.  99. 

c  See  Practice  Act,  sec.  247.  d  Wood's  Digest,  art.  755. 


FORECLOSURE.  67 

or  some  part  thereof,  is  situated,  subject  to  the  power  of  the 
court  to  change  the  place  of  trial  in  the  cases  enumerated  in 
sec.  21.  Alien  mortgagees  are  mostly  enabled  to  avoid  the 
inconvenience  of  bringing  an  action  in  a  distant  county,  by  in- 
stituting their  suit  in  the  United  States  Circuit  Court,  at  San 
Francisco. 

§  112.  All  persons  materially  interested  in  the  property 
and  also  tenants  in  possession,  should  be  made  parties,*  in 
order  that  complete  justice  may  be  done  and  multiplicity  of 
suits  avoided,  and  also  to  give  security  and  stability  to  the 
purchaser's  title  at  the  sheriff's  sale,  for  the  purchaser  takes 
a  title  only  as  against  the  parties  to  the  suit.b  When  valid 
prior  incumbrances  exist  which  are  due,  the  bill  of  fore- 
closure will  ask  and  the  court  will  direct  that  they  be  first 
paid  from  the  proceeds  of  the  sale.  If  not  due,  the  proceed- 
ings will  be  subject  to  such  prior  incumbrances. 

All  incumbrancers,  whether  purchasers,  mortgagees,  or 
otherwise  subsequent  to  the  mortgage,  and  existing  at  the 
commencement  of  the  suit,  are  entitled  to  be  parties,  for  they 
have  an  interest  to  be  affected,  and  ought  to  have  an  oppor- 
tunity to  satisfy  the  prior  incumbrances.  If  not  made  par- 
ties to  the  action,  their  rights  are  not  affected  by  the  decree 
or  sale.c  But  they  are  not  necessary  parties  to  a  decree  as 
between  the  mortgagor  and  mortgagee.d 

Incumbrancers  who  become  such  after  suit  brought,  are  not 
deemed  necessary  parties,  although  they  are  bound  by  the 
decree  ;  for  they  can  claim  nothing  except  what  belonged  to 
the  person  under  whom  they  assert  title,  since  they  purchase 
with  constructive  notice.6 


a  But  where  a  prior  incumbrancer  should  be  made  a  party,  and  be  obliged 
to  appear  in  a  foreclosure  suit  to  protect  his  rights,  his  necessary  costs  shall 
be  first  paid  from  the  proceeds  of  sale.  Mayer  v.  Salisbury,  1  Barb.  Ch. 
p.  646. 

b  4  Kent's  Comm.  p.  197,  8th  ed.     See  hereinafter,  §  120. 

c  Haines  v.  Beach,  3  Johns.  Ch.  p.  459 ;  Whitney  v.  Higgins,  10  Col.  Rep. 
p.  647. 

d  Montgomery  v.  Tutt  et  al.,  11  Gal.  Rep.  p.  307. 

•  Story's  Eq.  Pleadings,  $  194.  The  plaintiff  may  file  with  the  County 
Recorder  a  notice  of  the  pendency  of  the  action,  which  shall  be  from  the 
time  of  filing  constructive  notice  to  purchasers  or  incumbrancers  of  the  prop- 
erty affected  thereby.  Practice  Act,  sec.  27,  (  Wood's  Digest,  art.  764.) 


68  MORTGAGES  IN  CALIFORNIA. 

On  the  foreclosure  of  a  mortgage  executed  by  husband 
and  wife,  it  is  unnecessary  to  make  the  wife  a  party  defend- 
ant unless  it  was  her  separate  estate,  or  property  held  as 
homestead.4  In  the  latter  case  she  must  be  made  a  party, 
for  legal  proceedings  affecting  the  homestead,  to  be  conclu- 
sive against  either,  must  embrace  both.b 

§  113.  With  reference  to  service  of  the  summons  :  sec. 
25  of  the  practice  act  provides  that  the  defendant  must 
answer  the  complaint  within  a  certain  period,  not  ex- 
ceeding forty  days  from  service  of  the  summons,  and  sec.  30 
and  31  enable  the  court  to  grant  an  order  that  service  be 
made  by  publication  of  the  summons,  (in  which  all  parties  to 
be  served  in  that  manner  may  be  joined,)  during  not  less  than 
three  months,  where  the  defendant  does  not  reside  in,  or  is 
absent  from  the  State,  or  cannot  be  found  therein,  in  which 
case  a  copy  of  the  summons  is  to  be  sent  to  such  defendant, 
through  the  post  office,  if  his  residence  be  known.  Where  it 
appears  to  the  satisfaction  of  the  court  that  the  defendant 
conceals  himself  to  avoid  service,  it  may  likewise  be  made  by 
publication,  during  such  time  as  the  court  may  deem  proper. 
In  any  case,  the  service  of  the  summons  shall  be  deemed  com- 
plete at  the  expiration  of  the  time  prescribed  by  the  order  for 
publication.0 

§  114.  In  order  to  maintain  an  action  for  foreclosure, 
founded  on  a  mortgage,  the  debt  must  first  be  proved,  and 
where  there  was  a  note  it  must  be  produced,  or  its  absence 
accounted  for.d 

The  practice  act  also  provides  concerning  the  action,  sec. 
16:e  "An  action  shall  not  abate  by  the  death,  or  other  disability 
of  a  party,  or  by  the  transfer  of  any  interest  therein,  if  the 
cause  of  action  survive  or  continue.  In  the  case  of  the  death,f 


*  Powell  v.  Ross.  4  Cal  Rep.  p.  197. 

b  Revalk  v.  Kraemer,  8  Cal  Rep.  p.  66 ;  Moss  v.  Warner,  10  Ibid.  p.  296. 
c  These  sections  give  a  non-resident  forty  days'  time  to  answer  from  lapse 
of  period  of  publication.     Grewell  v.  Henderson,  5  Cal.  Rep.  p.  465. 
d  Bennet  v.  Taylor,  5  Cal.  Rep.  p.  502. 

•  Wood's  Digest,  art.  753. 

'  When,  by  the  death  of  a  defendant  during  the  pendency  of  a  suit,  the 
interest  of  such  defendant  devolves  upon  others  not  already  before  the  court, 
such  persons  should  also  be  made  parties.  Lyon  v.  Sanford,  5  Conn.  p.  544. 


FORECLOSURE.  69 

or  other  disability  of  a  party,  the  court  on  motion,  may  allow 
the  action  to  be  continued  by  or  against  his  representative  or 
successor  in  interest.  In  case  of  any  other  transfer  of  in- 
terest, the  action  may  be  continued  in  the  name  of  the  orig- 
inal party  ;  or  the  court  may  allow  the  person  to  whom  the 
transfer  is  made,  to  be  substituted  in  the  action." 

§  115.  The  court  has  power  by  its  judgment  to  direct  a 
sale  of  the  property  or  any  part  of  it,  the  application  of  its 
proceeds  to  the  payment  of  the  amount  due  on  the  mortgage, 
(or  other  lien  or  incumbrance,)  with  costs,  and  execution  for 
the  balance.31  Or  the  court  may  in  the  same  action  enter  a 
general  judgment  against  the  maker  of  the  note  for  the 
amount  due,c  and  decree  a  sale  of  the  mortgaged  premises, 
the  proceeds  of  which  are  to  be  credited  upon  the  judgment. 

Such  general  judgment  becomes,  from  the  time  it  is  entered 
upon  the  docket  in  the  office  of  the  clerk  of  the  court,  a 
lien  upon  all  the  real  property  of  the  debtor  (except  in  so  for 
as  the  homestead  attaches,)  in  the  county,  or  in  any  other 
county  where  a  transcript  of  the  docket  may  have  been  filed 
with  the  Recorder,  owned  by  him  at  the  time,  or  which  he 
may  afterwards  acquire.  The  lien  continues  for  two  years, 
unless  previously  satisfied.d 

[  §  116.  An  appeal  from  the  judgment  maybe  taken  within 
one  year  from  its  rendition.  (Sec.  336.)  When  it  appears 


a  Practice  Act,  sec.  246. 

b  Rollins  v.  Forbes,  10  Col.  Rep.  p.  299 ;  Rowe  v.  Table  Mountain  Water 
Co.,  10  Ibid.  p.  441 ;  Rowland  v.  Leiby  et  al.,  October  T.  1859. 

c  The  interest  due  on  a  note,  or  obligation,  up  to  the  time  of  judgment, 
should  be  added  to  the  principal  to  constitute  the  amount  of  the  judgment. 
Montgomery  v.  Tutt  et  al.,  11  Gal.  Rep.  p.  307.  And  interest  then  at  the 
agreed  rate  to  run  on  the  whole  judgment  until  paid.  Guy  v.  Franklin,  5  Cal. 
Rep.  p.  416.  But,  though  the  note  may  stipulate  that  interest  at  the  agreed  rate 
shall  be  compounded,  not  so  with  a  judgment  obtained  on  it.  Such  a  manner 
of  computing  interest  may,  under  the  third  section  of  the  act  "  to  regulate 
interest  on  money,"  (ante,  §  62,)  constitute  part  of  the  contract  in  writing,  but  is 
not,  like  the  rate  of  interest,  by  the  second  section,  made  applicable  to  a 
judgment  on  such  contract.  Raun  v.  Reynolds,  11  Cal.  Rep.  p.  14.  Where 
no  rate  of  interest  was  agreed  upon,  the  legal  interest,  according  to  the  law 
in  existence  at  the  time  and  place  of  the  contract,  will  be  included  in  the  judg- 
ment, and  will  run  on  the  total  amount  thereof.  See  Macoleta,  Ex.,  v.  Pack- 
ard, Adm.,  Oct.  T.,  1859. 

d  Wood's  Digest,  art.  938  and  941. 


70  MORTGAGES  IN  CALIFORNIA. 

to  the  appellate  court  that  the  appeal  was  made  for  delay,  it 
may  add  to  the  costs  such  damages   as  may  be  just.    (Sec. 

345.)a 

Sec.  352  reads  as  follows  : 

"  If  the  judgment  or  order  appealed  from,  direct  the  sale, 
or  delivery  of  possession  of  real  property,  the  execution  of 
the  same  shall  not  be  stayed,  unless  a  written  undertaking  be 
executed  on  the  part  of  the  appellant,  with  two  or  more  sure- 
ties, to  the  effect  that  during  the  possession  of  such  property 
by  the  appellant,  he  will  not  commit,  or  suffer  to  be  com- 
mitted any  waste  thereon,  and  that  if  the  judgment  be  affirmed, 
he  will  pay  the  value  of  the  use  and  occupation  of  the  prop- 
erty from  the  time  of  the  appeal  until  the  delivery  of  possess- 
ion thereof,  pursuant  to  the  judgment  or  order,  not  exceeding 
a  sum  to  be  fixed  by  the  judge  of  the  court  by  which  the 
judgment  was  rendered  or  order  made,  and  which  shall  be 
specified  in  the  undertaking.  When  the  judgment  is  for  the 
sale  of  mortgaged  premises,  and  the  payment  of  a  deficiency 
arising  upon  the  sale,  the  undertaking  shall  also  provide  for 
the  payment  of  such  deficiency." 

The  appeal  does  not  in  any  manner  impair  the  lien  ;b  and 
the  statutory  limitation  of  two  years  (§  115)  commences  to 
run  only  from  the  date  of  the  remittitur  after  the  final  judg- 
ment in  the  Supreme  Court,  although  the  lien  attaches  from 
the  date  of  the  judgment  in  the  court  below.0 


SALE. 


§  117.  Sales  of  real  property  under  the  decree  of  a  court 
are  made  by  the  same  officers,  and  are  subject  to  the  same 
regulations,  as  sales  under  execution  by  virtue  of  a  judgment, 
and  differ  only  herein,  that  the  former  are  confined  to  the 
property  mentioned  in  the  decree,  whilst  the  latter  are  re- 
stricted to  the  property  levied  on. 

The  plaintiff  postpones  the  sale,  if  he  deem  it  expedient,  at 

a  See  Russell  v.  Williams,  2  Col.  Rep.  p.  158.  In  many  cases,  such  damages 
are  given. 

b  Low  et  al.  v.  Adams,  6  Cal.  Rep.  p.  277. 

c  Dewey  v.  Latson  et  al.,  6  Cal.  Rep.  p.  130.  An  appeal  prevents  the  run- 
ning of  the  statute.  Castro  v.  Castro,  6  Cal  Rep.  p.  158. 


SALE.  71 

any  time  before  its  commencement,  and  even  on  the  day  an- 
nounced, as  often,  and  for  as  long  a  time  as  he  may  consider 
advisable. 

The  sales  are  made  by  the  sheriff,  after  posting  of  notices 
and  advertising  for  twenty  days,  at  auction,  and  to  the  high- 
est bidder,  for  cash. 

§  118.  Practice  act,  sec.  223  :  ".  .  When  the  sale  is  of  real 
property,  and  consisting  of  several  known  lots  or  parcels,  they 
shall  be  sold  separately  ;  or  when  a  portion  of  such  real  prop- 
erty is  claimed  by  a  third  person,  and  he  requires  it  to  be 
sold  separately,  such  portion  shall  be  thus  sold.  The  judg- 
ment debtor,  if  present  at  the  sale,  may  also  direct  the  order 
in  which  property,  real  or  personal,  shall  be  sold,  when  such 
property  consists  of  several  known  lots  or  parcels,  or  of 
articles  which  can  be  sold  to  advantage  separately  ;  and  the 
sheriff  shall  be  bound  to  follow  such  directions." 

"  Sec.  248.  If  the  debt  for  which  the  mortgage,  lien,  or 
incumbrance  is  held,  be  not  all  due,  so  soon  as  sufficient  of 
the  property  has  been  sold  to  pay  the  amount  due  with 
costs,  the  sale  shall  cease  ;  and  afterwards,  as  often  as  more 
becomes  due,  for  principal  or  interest,  the  court  may,  on 
motion,  order  more  to  be  sold.  But,  if  the  property  can- 
not be  sold  in  portions  without  injury  to  the  parties,  the 
whole  may  be  ordered  to  be  sold  in  the  first  instance,  and  the 
entire  debt  and  costs  paid,  there  being  a  rebate  of  interest 
where  such  rebate  is  proper." 

§  119.  The  mortgagee,  as  judgment  creditor  for  any  defi- 
ciency remaining  after  sale  of  the  mortgaged  premises,  may 
at  any  time  within  five  years  after  the  entry  of  the  judgment, 
have  a  writ  of  execution  issued  against  any  other  property 
of  the  debtor,  for  its  satisfaction ;  after  that  period  the  exe- 
cution may  only  issue  by  leave  of  the  court,  which  is  not 
given  without  proof  that  the  judgment,  or  some  part  thereof, 
remains  unsatisfied  and  due.  The  writ  requires  the  sheriff 
to  satisfy  the  judgment  with  interest  out  of  any  property 
of  the  debtor.  The  sheriff  executes  the  writ  by  levying  on 
the  property,  and  selling  it,  or  so  much  of  it  as  is  neces- 
sary to  satisfy  the  execution. 

§  120.  The  purchaser  takes  the  property  subject  to  all 
equitable  liens  upon  it,  which  have  not  been  extinguished  by 


72  MORTGAGES  IN  CALIFORNIA. 

the  decree  of  foreclosure  and  sale,  and  where  there  are  sub- 
sisting mortgages  and  leases,  he  takes  subject  to  them.a  It 
follows  that,  with  the  exception  of  such  as  are  acquainted 
with  the  details  of  the  title  to  the  property,  few  persons  care 
to  buy  real  estate  at  sheriff's  sale.  In  general,  at  sales,  made 
either  at  auction  or  private,  it  is  an  understood  condition 
that  the  title  shall,  on  examination,  prove  to  be  perfect ;  the 
purchaser  risks  the  expense,  if  any,  of  the  investigation, 
knowing  that  he  can  obtain  the  property  at  a  certain  price. 
But  a  sale  by  the  sheriff  is  absolute.  At  a  sale  on  fore- 
closure therefore,  the  purchaser  acquires  the  title  of  both  the 
mortgagor  and  mortgagee,  but  must  take  it  as  it  is,  and  in 
the  uncertainty  whether  one  will  be  able  to  buy  at  a  suitable 
price,  there  is  not  much  disposition  to  incur  in  advance,  the 
expense  and  trouble  of  an  examination  of  the  title.  This 
disadvantage  may,  to  a  great  extent,  be  overcome  by  putting 
at  the  disposal  of  intending  purchasers,  an  abstract  of  the 
title  made  by  one  or  more  searchers  of  title  enjoying  general 
confidence. 

Besides,  the  question  whether,  and  when,  the  property  will 
be  redeemed  is  another  objection.  True,  the  purchaser  is, 
until  redemption,  entitled  to  the  rent,  or  the  value  of  its  use, 
and  if  the  property  be  redeemed,  he  receives  a  bonus,  but  the 
uncertainty  of  the  continuance  of  the  investment,  and  the 
impossibility  of  giving  the  premises  before  the  time  for  re- 
demption has  expired,  a  permanent  destination,  renders  a 
purchase  at  a  sheriff's  sale  less  desirable. 

For  these  reasons,  and  to  save  the  costs  of  foreclosure,  an 
understanding  is  often  arrived  at  between  the  mortgagee  and 
the  mortgagor,  when  it  becomes  necessary  to  dispose  of  the 
property,  if  this  mode  has  not  before  been  agreed  upon, — to 
have  the  premises  sold  at  auction,  or  at  private  sale  ;  but 
when  this  is  not  done,  the  premises  must  sometimes  be  bought 
by  the  mortgagee,1*  or  some  one  in  his  behalf,  so  as  to  secure 
the  full  value  on  a  resale. 

a  See  Johnson  v.  Dopkins,  3  Cal  Rep.  p.  391. 

b  The  possibility  hereof  is  no  drawback  to  mortgages,  but,  wherever  this 
contingency  might  arise,  it  forms  the  principal  reason  why  a  much  greater 
margin  in  value,  than  is  usual  in  most  other  countries,  is  required  in  the  case 
of  loans  on  real  property  in  this  State. 


REDEMPTION.  73 

After  sale  the  officer  making  the  same,  furnishes  the  pur- 
chaser with  a  certificate  of  purchase. 


REDEMPTION. 

§  121.  In  this  State  the  mortgagor  has  a  statutory  right  of 
redemption  after  sale  under  foreclosure,  and  so  nas  each  of  his 
creditors,  holding  a  subsequent  lien  by  judgment  or  mortgage. 

This  right  of  redemption  is  based  upon  the  229th  sec.  of 
the  practice  act,a  stating  that  upon  a  sale  of  real  property 
under  execution,  the  real  property  sold,  or  any  part  sold  sep- 
arately, shall  be  subject  to  redemption. 

It  may  be  doubted  whether  the  right  of  redemption  there 
provided,  except  as  regards  sales  of  property  under  execu- 
tion for  a  deficiency,  has  been  rightly  held  applicable  to  sales 
of  mortgaged  premises  under  foreclosure  of  the  mortgage. 
In  a  strictly  legal  point  of  view  it  would  appear  unnecessary 
to  stretch  the  meaning  of  the  section  so  as  to  include  such 
sales,  whilst  certainly  in  equity  the  mortgagor  can  hardly  be 
considered  entitled  to  so  much  leniency.  He  has  known 
when  the  debt  would  be  due  ;  he  has  had  it  in  his  power  to 
avail  himself  of  his  equitable  right  of  redemption,  until  the 
suit  in  foreclosure,  of  which  he  had  due  notice,  resulted  in  a 
sale  of  the  premises  mortgaged.  He  had  ample  time  to  save 
his  estate,  if  he  had  the  will  and  the  means. 

But  the  former  interpretation  of  the  statute,  holding  it 
applicable  to  such  sales,  is  binding  upon  all  parties,  under 
the  decisions  of  the  Supreme  Court  of  this  State.b 

In  but  very  few  cases  this  right  of  redemption  from  sales 

a  Wood's  Digest,  art.  963.  The  statute  allowing  redemption  of  land  sold 
under  execution,  is  inoperative  where  the  debt  upon  which  judgment  was 
obtained,  had  been  contracted  before  its  passage.  Seale  v.  Mitchell,  5  Cat. 
Rep.  p.  401. 

b  Kent  et  al.  v.  Laffan,  2  Cal  Rep.  p.  595.  reaffirmed  in  the  case  of  Harlan 
v.  Smith..  6  Ibid.  p.  173,  and  in  that  of  McMillan  v.  Richards  et  al.,  9  Ibid. 
p.  565.  In  the  latter  case  the  court,  in  an  unanimous  opinion,  used  the  fol- 
lowing language:  "Whether  this  decision  would  be  now  made,  were  the 
question  an  open  one,  it  is  unnecessary  to  determine.  It  has  been  repeatedly 
recognized  as  law  by  this  court,  and  has  been  acted  upon  by  parties  for  years ; 
rights  of  property  have  been  acquired  under  it,  which  we  are  not  at  liberty  at 
this  day  to  disturb." 


74  MORTGAGES  IN  CALIFORNIA. 

on  foreclosure  of  mortgage  has  been  availed  of  by  the  parties 
in  interest.  The  right  alluded  to  has  therefore  been  of  very 
little  benefit  to  mortgagors,  and  at  the  present  day  this  same 
statutory  right  of  redemption  operates  greatly  to  their  dis- 
advantage, for  lenders  of  money,  want  a  much  larger  margin  in 
the  value  of  the  security  than  they  would  otherwise  require, 
on  account  of  the  delays  which  may  result  from  it.  (Referred 
to  in  §  120.) 

§  1*22.  The  following  parties,  or  their  successors  in  in- 
terest, are  entitled  to  redeem :  1.  The  judgment  debtor. 
2.  A  creditor  (termed  a  redemptioner,)  having  a  lien  by  judg- 
ment or  mortgage,  subsequent  to  that  on  which  the  property 
was  sold.a  (Sec.  230.) 

The  act  further  provides  : 

Sec.  231,  as  amended  March  28,1859:  "The  judgment- 
debtor,  or  a  redemptioner,  may  redeem  the  property  from 
the  purchaser  within  six  months  after  the  sale,  on  paying  the 
purchaser  the  amount  of  his  purchase,  with  twelve  per  cent.b 
thereon  in  addition,  together  with  the  amount  of  any  assess- 
ment or  taxes  which  the  purchaser  may  have  paid  thereon 
after  the  purchase,  and  interest  on  such  amount.  After  the 
sale  of  any  real  estate,  the  judgment  under  which  such  sale 
was  had  shall  cease  to  be  a  lien  upon  such  real  estate."6 


B  That  is,  any  such  lien  which  has  attached  subsequent  to  that  on  which 
the  property  was  sold,  and  before  the  expiration  of  the  time  allowed  for 
redemption.  McMillan  v.  Richards,  9  Cal  Rep.  p.  365. 

b  Where  the  debt  was  contracted  before  the  passage  of  the  amendatory 
act,  and  under  the  operation  of  the  original  act,  eighteen  per  cent,  will  have 
to  be  paid  on  redemption,  and  six  per  cent,  when  redeeming  from  a  previous 
redemptioner. 

c  A  sale  under  a  judgment  does  not  extinguish  the  balance  of  such  judg- 
ment, for  any  purpose  whatever,  until  the  deed  of  the  Sheriff  is  actually 
executed  under  such  sale ;  nor  does  the  sale  under  one  judgment  cut  off  the 
lien  of  a  subsequent  judgment,  until  the  execution  of  such  deed.  The  expi- 
ration of  six  months  after  the  sale  has  of  itself  no  such  effect.  People  ex 
rel.  McMillan  v.  Visher,  1  Labatfs  Rep.  p.  98.  If  the  mortgagee  or  creditor 
purchases  the  property  for  a  less  amount  than  the  judgment,  the  sale  does  not 
extinguish  the  lien  of  the  judgment  for  the  residue,  and  the  mortgagor,  or 
any  redemptioner  having  a  lien  subsequent  to  that  of  the  purchasing  creditor, 
must,  in  order  to  redeem,  pay  the  full  amount  of  the  judgment,  with  twelve 
per  cent,  thereon,  irrespective  of  the  amount  for  which  the  property  was 
sold.  Vandyke  v.  Herman  et  al.,  3  Cal  Rep.  p.  295;  Knight  v.  Fair,  9  Ibid. 
p.  117 ;  McMillan  v.  Richards,  9  Ibid.  p.  365. 


REDEMPTION.  75 

§  123.  Sec.  232,  as  amended  March  28,  1859  :  "  If  the 
property  be  so  redeemed  by  a  redemptioner,  either  the  judg- 
ment-debtor or  another  redemptioner  may,  within  sixty  days 
after  the  last  redemption,  again  redeem  it  from  the  last  re- 
demptioner, on  paying  the  sum  paid  on  such  last  redemption, 
with  four  per  cent,  thereon  in  addition,  and  the  amount  of 
any  assessment  or  taxes  which  the  said  last  redemptioner 
may  have  paid  thereon,  after  the  redemption  by  him  with  in- 
terest on  such  amount.  The  property  may  be  again,  and  as 
often  as  the  debtor  or  redemptioner  is  so  disposed,  redeemed 
from  any  previous  redemptioner  within  sixty  days  after  the 
last  redemption,  on  paying  the  sum  paid  on  the  last  previous 
redemption,  with  four  per  cent,  thereon  in  addition,  and  the 
amount  of  any  assessments  or  taxes  which  the  last  previous 
redemptioner  paid,  after  the  redemption  by  him,  with  interest 
thereon, 

"  Notice  of  redemption  shall  be  given  to  the  sheriff.  If  no 
redemption  be  made  within  six  months  after  the  sale,  the 
purchaser,  or  his  assignee,  shall  be  entitled  to  a  conveyance, 
or  if  so  redeemed,  whenever  sixty  days  have  elapsed  and  no 
other  redemption  has  been  made,  and  notice  thereof  given, 
the  time  for  redemption  shall  have  expired,  and  the  last 
redemptioner,  or  his  assignee,  shall  be  entitled  to  a  sheriff's 
deed.  If  the  debtor  redeem,  at  any  time  before  the  time  for 
redemption  expires,  the  effects  of  the  sale  shall  be  terminated, 
and  he  be  restored  to  his  estate." 

§  124.  <4Sec.  233.a  The  payment  mentioned  in  the  last  two 
sections  may  be  made  to  the  purchaser  or  redemptioner,  as 
the  case  may  be,  or  for  him,  to  the  officer  who  made  the  sale  ; 
and  a  tender  of  the  money  shall  be  equivalent  to  payment." 

"  Sec.  234  :  A  redemptioner  shall  produce  to  the  officer  or 
person  from  whom  he  seeks  to  redeem,  and  serves  with  his 
notice  to  the  sheriff : 

1st.  A  copy  of  the  docket  of  the  judgment  under  which  he 
claims  the  right  to  redeem,  certified  by  the  clerk  of  the  court, 
or  of  the  county  where  the  judgment  is  docketed  ;  or  if  he 
redeem  upon  a  mortgage  or  other  lien,  a  note  of  the  record 
thereof  certified  by  the  recorder. 

2d.  A  copy  of  any  assignment  necessary  to  establish  his 

*  Wood's  Digest,  art.  967. 


76  MORTGAGES  IN  CALIFORNIA. 

claim,  verified  by  the  affidavit  of  himself  or  of  a  subscribing 
witness  thereto,  and 

3d.  An  affidavit  by  himself,  or  his   agent,   showing   the 
amount  then  actually  due  on  the  lien."  a 

§  125.  "  Sec.  235.  Until  the  expiration  of  the  time  allowed 
for  redemption,  the  court  may  restrain  the  commission  of 
waste  on  the  property,  by  order  granted  with  or  without 
notice,  on  the  application  of  the  purchaser  or  the  judgment 
creditor.  But  it  shall  not  be  deemed  waste  for  the  person  in 
possession  of  the  property  at  the  time  of  sale,  or  entitled 
to  possession  afterwards,  during  the  period  allowed  for  re- 
demption, to  continue  to  use  it,  in  the  same  manner  in  which 
it  was  previously  used  ;  or  to  use  it  in  the  ordinary  course  of 
husbandry  ;  or  to  make  the  necessary  repairs  of  buildings 
thereon  ;  or  to  use  wood  or  timber  on  the  property  therefor  ; 
or  for  the  repair  of  fences  ;  or  for  fuel  in  his  family,  while  he 
occupies  the  property." 

§  126.  The  purchaser  from  the  time  of  the  sale  until  a  re- 
demption, and  the  redemptioner,  from  the  time  of  his  redemp- 
tion until  another  redemption,  shall  be  entitled  to  receive 
from  the  tenant  in  possession,1*  the  rents  of  the  property 
sold,  or  the  value  of  the  use  and  occupation  thereof.0 

a  The  title  to  redeem  is  a  statutory  right,  given  only  in  the  event  of  a 
tender  and  production  of  certain  statutory  proofs,  and  a  strict  compliance 
with  the  laws  that  give  it  must  be  shown.  This  constitutes  a  qualification  of 
the  right  of  the  creditor.  He  must  not  only  have  his  right,  but,  to  entitle 
him  to  redeem,  he  must  present  the  specified  evidence.  Waller  v.  Harris,  20 
Wend.  561 ;  Haskells  v.  Manlove,  July  T.  1859. 

b  The  judgment-debtor,  or  mortgagor,  in  possession,  is  in  legal  contempla- 
tion no  less  a  tenant  than  the  man  who  occupies  under  him.  Harris  v.  Rey- 
nolds et  al.,  April  T.  1859. 

c  Wood's  Digest,  art.  970.  The  purchaser  can  sue  the  tenant  in  possession 
for  the  rent,  as  often  as  it  falls  due,  under  the  terms  of  lease  existing  when 
he  became  purchaser.  The  effect  of  the  sale  is  equivalent  to  an  assignment 
of  the  lease  for  the  time.  Eeynolds  v.  Lathrop,  7  Cal  Rep.  p.  43.  But  the 
terms  of  the  lease  made  by  the  owner  of  the  premises  might  render  the 
statute  apparently  nugatory;  and  it  was  held,  that  where  the  lease  was  for  a 
term  of  years,  and  the  rent  was  paid  in  advance,  the  purchaser  under  the 
mortgage  sale  can  require  the  tenant  to  pay  the  rent  over  again  to  him. 
McDevitt  v.  Sullivan,  8  Cal.  Rep.  p.  592.  Where  the  mortgagor  contests  the 
validity  of  the  sale,  and  continues  to  receive  the  rents  and  profits  during  the 
time  set  for  redemption,  he  will  be  considered  as  a  trustee  of  the  fund,  and, 
if  it  be  in  danger  of  loss,  chancery  will  protect  the  trust  property ;  for  in- 
stance, by  compelling  the  mortgagor  to  pay  the  rents  and  profits  into  court, 


REDEMPTION  77 

§  1 27.  The  estate  of  the  mortgagor  does  not  become  vested 
in  the  purchaser,  or  redemptioner,  by  mere  lapse  of  the 
time  allowed  by  the  statute  for  redemption.*  The  possession 
does  not  change  to  him,  until  a  consummation  of  the  sale  by 
the  sheriff's  conveyance,  to  which  at  the  expiration  of  that 
time  he  is  entitled,  as  he  is  likewise  to  an  order  from  the 
court  to  be  placed  in  possession,  unless  a  direction  to  that 
effect  is  contained  in  the  decree  of  foreclosure ;  and  if  that 
upon  its  service  should  be  disregarded,  the  court  will  issue 
a  writ  of  assistance,  under  which  possession  will  be  given.b 

§  128.  This  statutory  right  of  redemption,  in  some  in- 
stances, exists  where  there  is  no  equity,  and  in  other 
instances,  in  connection  with  the  equitable  right.  Parties  to 
the  suit  in  which  the  judgment  is  rendered,  under  which  the 
sale  is  made,  and  who  are  entitled  to  redeem,  are  restricted 
by  the  statute  to  six  months.  (§  122.)  Parties  acquiring  a 
new  interest,  pending  suits  to  enforce  previously  existing 
liens,  taking  their  interests  in  subordination  to  any  decree 
which  may  be  rendered,  have  no  equity  and  are  confined  to 
the  rights  given  by  the  statute  ;  and  so  as  a  consequence,  are 
those  whose  interests  are  acquired  after  judgment  docketed 
or  sale  made.  But  parties  obtaining  interests  subsequent  to 
the  plaintiff,  and  before  suit  brought,  who  are  not  made 
parties  to  such  suit,  possess  both  the  equitable  and  the  statu- 
tory right.  Not  having  been  made  parties  to  the  suit,  their 
equity  of  redemption  has  not  been  affected  by  the  decree  and 
sale.  They  may  redeem  under  the  statute,  or  they  may  file 
their  bill  in  equity.0 

until  the  points  at  issue  between  him  and  the  purchaser  shall  have  been 
adjudicated.  Harris  v.  Reynolds  et  al.,  April  T.  1859;  Reynolds,  Admin., 
v.  Harris,  January  T.  1860. 

*  Vaughn  v.  Ely,  4  Barb.  159.  Until  consummation  of  the  sale  by  convey- 
ance, the  estate  remains  in  the  mortgagor,  as  it  does  by  sale  under  execution 
in  the  judgment-debtor ;  and  the  conveyance,  when  executed,  will  take  effect, 
in  the  one  case,  from  the  date  of  the  mortgage,  as  it  does  in  the  other  from 
the  time  the  lien  of  the  judgment  attached.  McMillan  v.  Richards,  9  Col. 
Rep.  p.  365. 

b  As  against  all  the  parties  to  the  suit,  the  title  is  gone  ;  and  as  the  right 
to  the  possession,  as  against  them,  follows  the  title,  it  would  be  an  useless 
and  vexatious  course  to  require  the  purchaser  to  obtain  such  possession  by 
another  suit.  Montgomery  v.  Tutt  et  aL,  11  C(d.  Rep.  p.  190. 

e  Whitney  v.  Higgins,  10  Col.  Rep.  p.  547. 


CHAPTER  VII. 

DEEDS    OF    TRUST, 


§  129.  Real  estate  may  be  conveyed  to  a  trustee,  or  trus- 
tees, in  trust,  to  secure  the  payment  of  a  certain  debt  of  the 
grantor. 

In  England  and  in  some  of  the  United  States,  mortgages 
are  frequently  taken  in  this  form.  In  California  this  has  not 
often  been  the  case.  Our  statutes  do  not  directly  authorize 
this  mode  of  securing  a  debt  by  real  estate,  and  some  of  the 
decisions  of  the  Supreme  Court  contain  such  general  terms 
in  defining  the  nature  of  mortgages,  under  which  the  title  of 
the  debtor  could  not  be  divested,  except  by  a  judicial  fore- 
closure and  sale,  subject  to  redemption,  that  it  was  deemed 
uncertain  whether  our  courts  would  not  hold  that  a  debt 
could  not  be  realized  under  such  deeds  of  trust,  under  our 
statutes,  unless  in  the  same  way,  by  foreclosure  and  sale,  sub- 
ject to  redemption,  which  would  take  away  the  advantages 
elsewhere  derived  from  a  conveyance  in  trust  in  the  manner 
alluded  to. 

Recently,  however,  the  question  of  the  validity  of  these 
deeds  of  trust,  has  presented  itself  before  the  Supreme  Court 
of  this  State  in  the  case  of  Koch  v.  Briggs?  and  in  the  judg- 
ment rendered  therein,  the  principle  involved  in  such  deeds 
was  fully  sustained. 

§  130.  The  deed  of  trust  upon  which  the  suit  was  based, 
contained  the  provisions  usual  in  such  instruments  ;  that  in 
case  of  default  in  the  payment  of  the  note  or  interest,  and 
upon  the  application  of  the  holder  of  the  note,  the  trustee 
would  sell  the  premises,b  at  auction,  at  a  designated  place,  to 

•  October  T.  1859. 

b  The  legal  estate  is  vested  in  the  trustee,  (Hill  on  Trustees,  p.  *231 ;)  but 
the  power  to  sell  can  only  be  exercised  under  the  circumstances  and  in  the 
manner  pointed  out  by  the  deed.  Walker  v.  Brungard,  13  Sm,  $  M.  p.  723. 


DEEDS  OF  TRUST.  79 

the  highest  bidder  for  cash,  after  previous  publication  of 
notice,  and  execute  to  the  purchaser  a  good  and  sufficient 
deed  of  the  same,  and  out  of  the  proceeds,  after  satisfying  the 
expenses,  pay  the  principal  and  interest,  rendering  the  sur- 
plus, if  any.  to  the  grantor  or  his  representatives. 

§  131.  The  court  unanimously  decided  that  sec.  260  of  the 
Practice  Act,a  could  not  be  made  to  apply  to  this  deed,  and 
pointed  out  the  difference  between  such  conveyance  in  trust, 
and  a  mortgage,  in  the  following  terms : 

"  Where  there  is  a  mortgage,  there  is  a  right,  after  con- 
dition broken,  to  a  foreclosure  on  the  part  of  the  mortgagee, 
and  a  right  of  redemption  on  the  part  of  the  mortgagor.  The 
right  to  foreclose,  whether  resulting  in  vesting  an  absolute 
title  to  the  property  in  the  mortgagee,  as  formerly  in  Eng- 
land, or  in  a  judicial  sale  of  the  premises,  as  in  this  State, 
exists  in  all  cases  of  mortgage,  after  breach  of  condition,  as 
does  also  the  right  to  redeem  the  property  from  forfeiture, 
or  from  the  incumbrance  of  the  lien.  These  two  rights  are 
mutual  and  reciprocal.  When  the  one  cannot  be  enforced, 
the  existence  of  the  other  is  denied,  and  when  either  is 
wanting,  the  instrument,  whatever  its  resemblance  in  other 
respects,  is  not  a  mortgage. 

"  In  reference  to  the  deed  in  question,  no  suit  for  a  fore- 
closure, as  in  cases  of  mortgage  in  England,  would  lie,  for 
there  could  be  no  forfeiture  of  the  estate  to  enforce,  and  of 
course  no  equity  as  against  such  forfeiture,  to  foreclose.  Nor 
would  a  suit  lie  for  a  foreclosure  under  our  system — that  is, 
for  a  decree  adjudging  a  sale  of  the  premises  and  the  appli- 
cation of  the  proceeds  to  the  payment  of  the  debt,  as  such 
suit  could  only  be  based  upon  the  contract  of  the  parties,  and 
the  contract  here  is  only  that  upon  the  happening  of  a  certain 
ev£nt  the  trustee  shall  sell.  Equity  could  not  adjudge  a 
sale,  as  in  case  of  a  mortgage,  without  disregarding  the  ex- 
press contract  of  the  parties,  and  making  a  new  and  different 
one. 

"  Equity  would  limit  its  relief  to  the  contract  made,  and 
effectuate  a  sale  only  by  enforcing  the  performance  of  the 
trust. 

•  See  ante,  $  63. 


80  MORTGAGES  IN  CALIFORNIA. 

"  Nor  would  any  equity  of  redemption  exist  if  the  trust 
was  performed,  for,  in  its  execution,  no  forfeiture  would  be 
asserted  from  which  relief  could  be  sought.  In  performance 
of  the  trust  the  contract  of  the  parties — in  fact  and  inten- 
tion— would  be  carried  out,  whereas  in  mortgages,  the  form 
of  contract  is  one  of  conveyance,  while  in  truth  the  contract 
is  one  only  of  security,  and  the  equity  is  enforced  to  give 
effect  to  the  intent  of  the  parties  against  the  legal  conse- 
quences of  the  form  of  their  undertaking."  a 

§  132.  This  decision  is  likely  to  have  some  influence  upon 
the  manner  of  securing  money  on  real  estate,  in  California, 
and  may  cause  deeds  of  trust  to  be  frequently  substituted  for 
mortgage  deeds,  as  deeds  of  trust,  in  case  of  default,  will 
lead  to  a  considerable  saving  in  time  and  expense,  whilst  the 
absence  of  any  right  of  redemption,  will  render  the  property 
immediately  available  for  the  purchaser. 

§  133.  The  deed  whereby  the  trust  is  created,  may  provide 
for  the  appointment  of  a  new  trustee,  to  supply  the  vacancy, 
which  might  be  occasioned  by  the  resignation,  or  the  death, 
or  incapacity  of  the  trustee  originally  appointed.  If  the 
deed  contains  no  such  power,  and  in  general,  wherever  cir- 
cumstances render  it  necessary  to  appoint  new  trustees,  the 
Court  of  Chancery,  in  the  exercise  of  its  inherent  jurisdic- 
tion, will  interpose  upon  a  proper  application,  and  make  the 
appointment.  It  is  said,b  and  universally  admitted  :  "  There 
is  no  equitable  doctrine  more  firmly  established,  than  that  a 
trust,  once  properly  created,  shall  never  fail  on  account  of 
the  death,  disability,  or  non-appointment  of  the  trustee." 

The  statute  of  limitations  will  not  run  against  a  trust 
created  by  deed  for  the  payment  of  a  debt.c 


*  These  views  are  sustained  by  several  authorities.  Under  similar  circum- 
stances, in  Sampson  v.  Pattison,  1  Hare,  p.  536,  the  court  says :  "  There  is  no 
right  of  foreclosure  arising  out  of  such  a  contract."  "The  form  of  the 
security  points  out  the  manner  in  which  the  trust  is  to  be  worked  out  and 

payment  obtained  ; and  after  a  certain  time,  if  payment  is  not  made, 

the  trustee  may  sell  the  estate."  And  in  Reese  v.  Allen,  5  Oilman,  p.  239, 
the  court  state:  "We  cannot  hold  this  to  be  a  mortgage,  without  saying  that 
the  manifest  and  clearly  expressed  intention  of  the  parties  shall  cease  to  be 
the  rule  of  construction." 

b  Hill  on  Trustees,  preliminary  chapter,  §  iii. 

'  Hill  on  Trustees,  p.  341. 


CHAPTER  VIII. 

LIMITATION. 


§  134.  The  act  of  April  22,  1850,  defining  time  of  com- 
mencing civil  actions,  amended  April  11, 1855,  and  known  as 
the  Statute  of  Limitations,*  is  calculated  to  have  a  beneficial 
effect  on  titles  to  real  property.  The  peculiar  circumstances 
under  which  this  State  was  peopled,  by  men  from  many  coun- 
tries, governed  by  various  systems  of  law,  the  eagerness  and 
rapidity  with  which  real  estate  changed  hands,  etc.,  has 
caused  numberless  irregularities,  often  amounting  to  fatal 
defects,  in  the  terms  of  documents,  as  well  as  in  the  manner 
of  execution  and  acknowledgment. 

The  above  statute,  amongst  other  purposes,  is  intended  to 
take  away  the  effect  of  imperfection  of  title,  or  of  loss  of 
documents  in  many  cases,  through  the  prevention  of  litiga- 
tion, by  fixing  a  period  beyond  which  a  party  is  not  allowed 
to  enforce  a  claim.  The  act  takes  effect  in  general  from  its 
date,  but  as  regards  actions  for  the  recovery  of  real  estate, 
from  the  date  of  the  amendatory  act  (April  11, 1855,)  whereby 
sec.  6  amongst  others  was  amended  and  re-enacted,b  and 
though  not  directly  concerning  mortgages,  the  act  will  from 
April  1860,  be  so  intimately  connected  with  the  subject  of 

•  There  is  one  limitation  affecting  real  estate,  which  is  not  contained  in  the 
statute  of  limitations ;  that,  namely,  which  is  found  in  the  eleventh  section  of 
another  statute,  known  as  the  settlers  act,  passed  March  26,  1856,  ( Wood's 
Digest,  art.  2755,)  providing  that  "  no  action  of  ejectment,  or  other  actions  to 
recover  the  possession  of  lands,  shall  hereafter  be  sustained,  unless  such 
action  shall  have  been  commenced  within  two  years  after  the  cause  of  action 
accrued,"  etc.  The  decision  in  Billings  v.  Hall,  7  Col.  Rep.  p.  1,  concerning 
the  settlers  act,  does  not  appear  to  affect  the  section  here  quoted,  the  opera- 
tion whereof,  however,  is  supposed  to  be  confined  to  cases  arising  within  the 
scope  of  the  act. 

k  Billings  v.  Harvey  et  al.,  6  Col.  Rep.  p.  381;  Billings  v.  Hall,  7  Ibid. 
p.l. 

6 


82  MORTGAGES  IN  CALIFORNIA. 

title  to  land,  that  some  of  its  principal  provisions  may  ap- 
propriately find  a  place  here  : a 

"  Sec.  1.  Civil  actions  can  only  be  commenced  within  the 
periods  prescribed  in  this  act,  after  the  cause  of  action  shall 
have  accrued,  except  where  a  different  limitation  is  prescribed 
by  statute." 

"  Sec.  2.  When  the  cause  of  action  has  already  accrued, 
the  party  entitled  and  those  claiming  under  him  shall  have, 
after  the  passage  of  this  act,  the  whole  period  herein  pre- 
scribed, in  which  to  commence  an  action." 

§  134.*  "  Sec.  3.  The  people  of  this  State  will  not  sue  any 
person  for  or  in  respect  to  any  real  property,  or  the  issues 
or  profits  thereof,  by  reason  of  the  right  or  title  of  the  people 
to  the  same,  unless  :  1.  Such  right  or  title  shall  have  accrued 
within  ten  years  before  any  action  or  other  proceeding  for  the 
same  shall  be  commenced  ;  or  unless,  2.  The  people,  or  those 
from  whom  they  claim,  shall  have  received  the  rents  and 
profits  of  such  real  property,  or  of  some  part  thereof,  within 
the  space  of  ten  years." 

§  135.  "Sec.  6.  No  action  for  the  recovery  of  real  prop- 
erty, or  for  the  recovery  of  the  possession  thereof,  shall  be 
maintained,  unless  it  appear  that  the  plaintiff,  his  ancestor, 
predecessor  or  grantor,  was  seized  or  possessed  of  the  pre- 
mises in  question,  within  five  years  before  the  commencement 
of  such  action  ;  provided,  however,  that  an  action  may  be 
maintained  by  a  party  claiming  such  real  estate,  or  the  pos- 
session thereof,  under  title  derived  from  the  Spanish  or 
Mexican  governments,  or  the  authorities  thereof,  if  such 
action  be  commenced  within  five  years  from  the  time  of  the 
final  confirmation  of  such  title  by  the  government  of  the 
United  States,  or  its  legally  constituted  authorities." 

"  Sec.  7.  No  cause  of  action,  or  defense  to  an  action, 
founded  upon  the  title  to  real  property,  or  to  rents,  or  to 
services  out  of  the  same,  shall  be  effectual,  unless  it  appear, 
that  the  person  prosecuting  the  action,  or  making  the  de- 
fense, or  under  whose  title  the  action  is  prosecuted,  or  the 
defense  is  made,  or  the  ancestor,  predecessor,  or  grantor  of 
such  person,  was  seized  or  possessed  of  the  premises  in  ques- 

a   Wood's  Digest,  art.  1,  et  seq. 


LIMITATION.  83 

tion,  with  five  years  before  the  commencement  of  the  act,  in 
respect  to  which  such  action  is  prosecuted,  or  defense  made, 
or  unless  it  appear  that  the  title  to  such  premises  was  de- 
rived from  the  Spanish  or  Mexican  governments,  or  that  the 
same  was  confirmed  by  the  government  of  the  United  States 
or  its  authorities,  within  five  years  before  the  commencement 
of  such  action." 

"  Sec.  9.  In  every  action  for  the  recovery  of  real 
property,  or  the  possession  thereof,  the  person  establishing  a 
legal  title  to  the  premises,  shall  be  presumed  to  have  been 
possessed  thereof,  within  the  time  prescribed  by  law,  and  the 
occupation  of  such  premises  by  any  other  person  shall  be 
deemed  to  have  been  under,  and  in  subordination  to,  the 
legal  title,  unless  it  appear  that  such  premises  have  been  held 
and  possessed  adversely  to  such  legal  title,  for  five  years 
before  the  commencement  of  such  action." 

§  135.*  "  Sec.  16.  If  a  person  entitled  to  commence  any  action 
for  the  recovery  of  real  property,  or  to  make  an  entry  or 
defense,  founded  on  the  title  to  real  property,  or  to  rents  or 
services  out  of  the  same  be,  at  the  time  such  title  shall  first 
descend  or  accrue,  either  :  1.  Within  the  age  of  twenty-one 
years  ;  or  2.  Insane  ;  or  3.  Imprisoned  on  a  criminal  charge, 
or  in  execution  upon  conviction  of  a  criminal  offense,  for  a 
term  less  than  for  life  ;  or  4.  A  married  woman  :  the  time 
during  which  such  disability  shall  continue  shall  not  be 
deemed  any  portion  of  the  time  in  this  act  limited  for  the 
commencement  of  such  action,  or  the  making  of  such  entry  or 
defense,  but  such  action  may  be  commenced,  or  entry  or 
defense  made,  within  the  period  of  five  years  after  such  disa- 
bility shall  cease,  or  after  the  death  of  the  person  entitled, 
who  shall  die  under  such  disability  ;  but  such  action  shall 
not  be  commenced,  or  entry  or  defense  made,  after  that 
period." 

§  136.  "  Sec.  17.  Actions,  other  than  those  for  the  recov- 
ery of  real  property,  can  only  be  commenced  as  follows  : 
Within  five  years — An  action  upon  a  judgment  or  decree  of 
any  court  of  the  United  States,  or  of  any  State  or  territory 
within  the  United  States.  Within  four  years — An  action 
upon  any  contract,  obligation,  or  liability  founded  upon  an 


84  MORTGAGES  IN  CALIFORNIA. 

instrument  of  writing,"*  except  such  judgment  or  decree, 
etc.b 

"  Sec.  21.  An  action  shall  be  deemed  to  be  commenced 
within  the  meaning  of  this  act,  when  the  complaint  has  been 
filed  in  the  proper  court." 

§  137.  "  Sec.  22.  If  when  the  cause  of  action  shall  accrue 
against  a  person,  he  is  out  of  the  State,  the  action  may  be 
commenced  within  the  term  herein  limited,  after  his  return 
to  the  State ;  and  if,  after  the  cause  of  action  shall  have 
accrued,  he  depart  the  State,  the  time  of  his  absence  shall 
not  be  part  of  the  time  limited  for  the  commencement  of  the 
action." 

"Sec.  25.  When  a  person  shall  be  an  alien  subject,  or 
citizen  of  a  country  at  war  with  the  United  States,  the  time 
of  the  continuance  of  the  war,  shall  not  be  part  of  the  period 
limited  for  the  commencement  of  the  action." 

§  138.  "  Sec.  26.  If  an  action  shall  be  commenced  within 
the  time  prescribed  therefor,  and  a  judgment  therein  for  the 
plaintiff  be  reversed  on  appeal,  the  plaintiff,  or  if  he  die  and 
the  cause  of  action  survive,  his  heirs  or  representatives  may 
commence  a  new  action  within  one  year  after  the  reversal." 

"  Sec.  27.  When  the  commencement  of  an  action  shall  be 
stayed  by  injunction  or  statutory  prohibition,  the  time  of  the 
continuation  of  the  injunction  or  prohibition  shall  not  be 
part  of  the  time  limited  for  the  commencement  of  the  action. r> 

§  139.  "  Sec.  28.  No  person  shall  avail  himself  of  a  disa- 
bility, unless  it  existed  when  his  right  of  action  accrued.7' 

"  Sec.  31.  No  acknowledgment  or  promise  shall  be  suffi- 
cient evidence  of  a  new  or  continuing  contract,  whereby  to 
take  the  case  out  of  the  operation  of  this  statute,  unless  the 
same  be  contained  in  some  writing,  signed  by  the  party  to  be 
charged  thereby." 

8  See,  as  to  the  effect  of  this  limitation,  upon  mortgages,  ante,  <$  66,  67. 
The  fact  that  the  contract  was  in  writing,  and  not  the  present  existence  of 
the  writing,  determines  the  period  within  which  the  action  must  be  brought. 
The  highest  evidence  of  that  fact  is,  of  course,  the  writing  itself ;  but  in  case 
of  its  loss  or  destruction,  the  fact  may  be  established  by  paroL  Bagley  v. 
Eaton,  10  Gal  Rep.  p.  126. 

b  For  foreign  judgments,  and  instruments  of  writing  executed  out  of  this 
State,  shorter  periods  have  been  established,  by  acts  of  May  4,  1852.  and 
April  2,  1855,  (  Wood's  Digest,  art.  32-31.) 


ERRATA  AND  ADDENDA. 


Page  VIII,  line    19,   for   "by   alcalde    and"    read:    by   the 
alcalde,  and  by  the 

//  //,  over  §  39  should  be  inserted  the  heading:  RECORD 
which  now  appears  over  §  43  on  page  IX. 

//       XI,  in  §  86,  for  "inproving"  read:  improving 

//  XII,  from  the  next  page  to  this,  over  §  121,  should 
be  transferred  the  heading:  REDEMPTION. 

a      XV,  after  line  12,  insert: 

For  this  purpose  it  was  necessary  to  quote, 
either  at  large  or  merely  by  reference,  not  only 
laws,  but  also  judicial  decisions,  which  however 
often  likewise  cover  other,  and  some  times  more 
important  points,  than  those  which  they  are 
intended  to  confirm  or  illustrate  in  these  pages. 

ti         //,    line  13,  for  "comparitively"  read:  comparatively 

//          //,      //    19,  for  "cited;"  read:  cited, 

//  3,  //  26,  "if  he  be  a  friend."  As  during  war  his 
alienage  may,  under  some  circumstances,  be, 
for  the  time,  objected  to,  the  reader  might  here 
have  been  referred  to  §  §  16 — 26. 

a  6,  note  a.  The  treaty  of  Amity  and  Commerce 
which  the  Governments  of  the  United  States 
and  the  Netherlands ,  "desiring  to  ascertain", 
as  stated  in  the  document  itself,  "in  a  permanent 
and  equitable  manner,  the  rules  to  be  observed 
relative  to  the  commerce  and  correspondence, 
which  they  intend  to  establish  between  their 


2  MORTGAGES    IN    CALIFORNIA. 

respective  states,  countries  and  inhabitants," 
concluded  in  1782,  came  in  December  1831 
before  the  Supreme  Court  of  North  Carolina,  in 
the  case  of  the  Trustees  of  the  University  v. 
Joshua  Miller,  (3  Dev.  p.  188.)  The  decision  of 
the  matter  at  issue  depended  in  the  first  place 
on  the  question  whether  said  treaty,  which  in  itself 
contains  no  limitation,  continued  in  force,  and  the 
court  say:  "We  can  know  our  exterior  relations  only 
through  that  branch  or  organ  of  the  government, 
appointed  by  the  form  of  it,  to  represent  us  and 
to  act  for  us  with  foreign  powers.  The  case  states , 
that  that  organ  or  department  of  the  Government, 
still  considers  the  treaty  as  binding;"  etc.  The 
court  further  explained  what  must  be  understood 
by  the  word  "effects,"  in  the  sixth  article,  and 
decided  that  the  treaty  was  intended  to  embrace 
all  kinds  of  property,  and  that  real  estate  must 
be  considered  as  included  in  the  term  "effects." 

The  treaty  is  found  in  the  eighth  volume  of  the 
{  "Public  Statutes  at  Large  of  the  United  States," 
published  in  1855  by  authority  of  Congress,  and 
without  any  addition,  as  with  other  treaties,  showing 
it  to  be  no  longer  in  force.  Yet  there  has  been 
for  some  time  a  difference  of  opinion  on  this  point 
between  the  two  Governments,  and  the  State 
Department  at  Washington  desires  the  treaty  to  be 
considered  as  no  longer  in  force,  a  fact  which  was 
not  within  the  author's  reach  when  the  foregoing 
pages  went  to  press  at  San  Francisco. 

That  the  rights  of  alien-mortgagees  are,  in 
general ,  equally  well  protected  without  this  treaty , 
already  proceeds  from  §  §  4 — 9 ,  and ,  with  reference 
to  a  state  of  war,  this  question  is  again  alluded 
to  below,  at  page  13. 

Page   8,  line  1,  for  "a  serious  objection  exists"  read:  no 
such    danger  of  partiality   need  be   apprehended, 
and  hence  there  exists  a  serious  objection 
H      //,  line   6,   after   "States,"   insert:   and   they  do   not 


ERRATA    AND    ADDENDA.  3 

interfere  with  the  jurisdiction  of  the  latter  without 
urgent  motive. 

Page  9,  in  note  c  to  §  14,  lines  24,  25,  26,  for  "In 
suits  —  jurisdiction"  read:  In  suits  founded  upon 
mortgages ,  justice  would  in  many  instances  not  be 
fully  administered  by  a  decision  only  founded  upon 
Common  law  principles,  and  they  are  therefore 
generally  brought  in  law  courts  having  equity 
jurisdiction.  In  California  suits  for  the  foreclosure 
of  mortgages  can  not  be  brought  in  any  other 
courts,  that  is,  they  must  be  brought  before  the 
United  States  Courts,  or  in  the  District  Courts 
instituted  by  the  Constitution  of  the  State ,  all  of 
which  have  jurisdiction  in  equity  as  well  as  in  law. 
And  add  at  the  close  of  the  note:  The  same 
eminent  judge  remarks  elsewhere  (Jackson  v. 
Willard,  4  Johns,  p.  42):  "Mortgages  have  been 
principally  the  subject  of  equity  jurisdiction.  They 
have  been  considered  in  those  courts  in  their  true 
nature  and  genuine  meaning ;  and  the  rules  by 
which  they  are  governed  are  settled  upon  clear 
and  consistent  principles." 

//  11,  note  d,  line  11,  "money  lent  to  the  public."  That 
is:  money  lent  to  the  State,  to  the  people;  the 
national  debt. 

it  13,  note  b.  The  question  as  to  the  efficacy  at  the 
present  time,  of  this  treaty  with  the  Netherlands, 
has  been  already  discussed  above  at  page  6.  It 
would  appear  however,  that ,  in  accordance  with  the 
general  views  of  the  two  most  eminent  American 
writers  on  International  Law,  (see  note  a,  page  14,) 
article  XVIII,  even  if  the  treaty  be  otherwise 
inoperative,  should  retain  its  effect  until  cancelled 
by  mutual  agreement. 

The  liberal  disposition  and  enlightened  policy 
of  the  American  Government,  with  reference  to 
the  subjects  of  hostile  nations  and  their  property, 
in  general,  will  best  appear  from  an  act  of 
Congress,  which  was  passed  as  early  as  July  6,  1798, 


4  MORTGAGES    IN    CALIFORNIA. 

when  with  a  view  to  the  protection  in  the  event 
of  war,  of  such  alien  enemies  as  were  not  already 
protected  by  treaty  stipulations,  and  were  not 
chargeable  with  actual  hostility  or  other  crime 
against  the  public  safety,  —  the  President  of  the 
United  States  was  authorized  to  permit  their 
residence  in  certain  cases,  and  also  to  "ascertain  and 
declare  such  reasonable  time  as  may  be  consistent 
with  the  public  safety,  and  according  to  the 
dictates  of  humanity  and  national  hospitality,"  which 
should  be  allowed  to  them,  "for  the  recovery, 
disposal  and  removal  of  their  goods  and  effects, 
and  for  their  departure." 

Goods ,  funds ,  and  other  effects  of  alien  enemies , 
imported  before  the  war,  are  generally  considered 
entitled  to  protection  during  such  a  period  after 
its  commencement ,  as  will  allow  of  their  disposal 
and  removal. 

The  United  States  will  no  doubt,  should  war 
again  threaten ,  pursue  a  similar  course ,  by 
maintaining  the  above  provisions,  or  by  enacting 
such  other  regulations  as  are  in  keeping  with  the 
progress  of  humane  sentiments  in  the  present  age, 
particularly  as  regards  alien  enemies  and  their 
property.  And  there  appears  to  be  no  ground 
whatever  to  apprehend  that  any  such  law  will 
ever  be  passed,  as  has  been  shown  in  §  20  not 
to  have  been  enacted  up  to  the  present  time. 
Page  15,  line  19,  after  "alluded  to"  insert:  (see  §  7.) 

//  17,  //  1,  after  "to  sue"  insert:  in  the  cases  where 
it  exists  in  time  of  war, 

a  //,  line  9,  after  "countries.  b"  insert:  This  is  no 
doubt  also  the  case  with  such  rights  or  debts 
originating  during  war,  as  have  not  been  judicially 
declared  forfeited  previous  to  its  termination. 

//  20,  note  b.  The  other  pretended  claim  of  great 
importance,  the  Santillan,  or  Bolton  and  Barron 
claim,  has  recently  been  declared  worthless  by  the 
Supreme  Court  of  the  United  States. 


EKKATA    AND    ADDENDA.  5 

Page  22,  §  31.  Already  by  act  of  March  3d  1851,  Sec.  13, 
it  had  been  made  the  duty  of  the  Surveyor  General 
of  California  to  cause  all  private  land  claims  which 
have  been  finally  confirmed  to  be  accurately 
surveyed,  and  to  furnish  plats  of  the  same.  These 
plats  or  surveys  have  also  to  be  filed,  like  those 
of  the  public  lands,  in  his  office  as  well  as  in  the 
general  land  office  at  Washington. 

//    30,  in  the  note,  line  12,  for  "a  Consul"  read:  Consul 

//  42,  line  14,  after  "exist"  insert:  at  the  time  of  the 
execution  of  the  mortgage 

//  45,  erase  lines  18,  19,  20,  "But — stipulations,"  and 
insert  instead: 

The  rights  of  husband  and  wife  are  governed  by 
this  act,  except  in  so  far  as  its  provisions  may  be 
in  conflict  with  the  stipulations  of  any  marriage 
contract.  See  Sec.  14  and  15.  The  marriage 
contract  must  be  executed  and  acknowledged ,  in  like 
manner  as  a  conveyance  of  land,  and  has  to  be 
recorded  in  the  county  in  which  the  parties  reside, 
and  in  every  county  in  which  any  real  estate  may 
be  situated  which  is  conveyed  or  affected  by  it. 
See  Sec.  16  and  17. 

n  49,  line  7,  after  "mortgagor"  add:  or  owner  of  the 
property,  and  against  occupation  of  the  premises 
not  permitted  by  the  policy, 

//    54,  line  15,  for  "or"  read:  or, 

//     //,      //     16,  for  "time,"  read:  time;  — 

//     //,      //     18,  erase  "given" 

//     //,      //     22,  for  "incumbrance"  read:  incunibrance, 

//  59,  //  7,  for  "The  lien"  read:  Unless  expressly 
released,  the  lien 

//    62,  line     6,  for  "vests"  read:  vest 

//    67,     //       6,  add:  See  §  §  10—13. 

u    68,     //       7,  for  "summons:"  read:  summons, 

//    73,     if     23,  after  "and"  insert:  could  procure 

//    74.  See  page  XIV. 

//    78,  line  26,  for  "instruments;"  read:  instruments: 

//    &o,     //       1,  for  "with"  read:  within 


6  MORTGAGES    IN    CALIFORNIA. 

Page  8 3,  §  136.  In  connection  with  Sec.  17,  and  in  addition 
to  various  causes  which  may  extend  the  different 
periods  limited  as  specified  in  this  act,  must  be 
observed  what  has  been  remarked  in  §  §  66 — 68, 
about  the  continuation  of  the  lien  on  mortgaged 
property ,  and  of  the  right  to  foreclose ,  even  where 
the  mortgagee  has  allowed  his  right  of  personal 
action  against  the  mortgagor  to  be  lost  through 
lapse  of  time;  • —  and  in  §  98  note  b  about  giving 
new  promissory  notes  in  payment  of  the  original 
notes,  whereby  (see  Sec.  31  in  §  139,)  the 
mortgagee's  right  to  a  personal  action  is  continued 
until  expiration  of  the  period  allowed  by  the  Statute, 
after  maturity  of  such  new  promissory  notes. 

J.  DE  F. 


's  GRAVENZANDE,  HOLLAND, 
June,  1860. 


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